TCPA

January 2019

Messages Promoting The Availability of Paid-For Services Not Marketing

Suriano v. French Riviera Health Spa
Dismissed – French Riviera Health Spa allegedly sent unsolicited (ATDS) text messages to plaintiff’s mobile.

Plaintiff received five texts. They read:

1. “Dear member, Welcome to Riviera Fitness! Where your fitness is our strength. We’re excited to have you as a member. Have a great workout!“
2. “Dear member, We offer a variety of classes and small group training. Click here (http://tinyurl.com/yag8aoha), for class schedules.”
3. “Dear member, Become your best self with our Personal Trainers. Ask us for info on our PT program. (http://tinyurl.com/yc8zaep8).”
4. “Follow us on social media! Facebook (http://tinyurl.com/ Y8m7okwe) Instagram (http://tinyurl.com/y77ocpjh).”
5. “Dear member, Did you know that we have a blog? Each month we post workout tips, testimonials and much more!“

The court noted that plaintiff had signed contracts to join the gym and its personal training program. Although plaintiff did not expressly consent in writing to receive the texts, he provided his cell phone number on the gym applications. This constituted consent to receive informational texts.

The court ruled texts 1, 2, and 5 were clearly informational. In the context of plaintiff’s membership, Text 3 was also informational, as it merely encouraged plaintiff to take advantage of the personal training services he had already paid for. On Text 4, the court determined an invitation to visit a social media site was not “material which specifically advertises ‘the commercial availability or quality of any property, goods, or services,’ nor did it constitute ‘the initiation of a … message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services … ‘”

Thus plaintiff consented to all five texts.
[E.D. LA; 2:18-cv-09141]
jbho: consent is dispositive – your best defense!

 

December 2018

No Liability For Response Texts, Even If They Don’t Opt You Out

Zemel v. CSC Holdings
Motion to dismiss granted in part – CSC allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile. When plaintiff replied STOP, rather than being opted-out, he received texts asking him which messages to suppress.

The court found that any texts sent in direct reply to plaintiff’s texts fell under the one-time prior express consent exemption carved out by the FCC. This included the STOP responses asking for clarification, since the clarification text was directly relevant to the stop message sent by plaintiff.

On ATDS claims, the court found that the texts being sent by short code was sufficient to allege use of an ATDS. CSC’s argument that plaintiff’s number would only be in the system through human intervention, while compelling, was not enough to dismiss allegations at the current stage of litigation.

The court thus preserved claims for the first text, but dismissed claims for subsequent texts sent in response to plaintiff’s actions.
[D. N.J.; 3:18-cv-02340]
jbho: Pretty risky to limit people’s ability to opt-out. The court did not opine on future (hypothetical) program texts sent after STOP. However, I imagine CSC would have a tough time arguing texts continued because the plaintiff didn’t say what to STOP. STOP means STOP ALL is the best policy.

This opinion also raises the question, “are texts sent from a Short Code automatically ATDS texts”? The court denied CSC’s motion to stay pending FCC guidance, finding in part “(t)he FCC has not indicated what action, if any, or when it will take in response to the comments received on this issue,” and thus would prejudice plaintiff.

Confirmation Text w/ Link To App Not Marketing

Phan v. Agoda
Defendant’s MSJ granted – Agoda allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile. Texts were sent after booking a hotel room and encouraged plaintiff to download the hotel’s mobile app. The texts read:

Good news! Your Agoda booking [number] is confirmed. Manage your booking with our free App.

Defendant argued plaintiff consented to the texts as part of the booking process, since directly above a “Book Now” button was the statement “I agree with the Privacy Policy and general terms by booking this room.”

The parties did not dispute that the Agoda sign-up process was sufficient to establish prior express consent. Plaintiff argued the link to the app in the texts constituted an advertisement, since the texts encouraged use of the app, an app specifically designed to allow recipients to undertake transactions that had nothing to do with reservations.

The court found the text were not advertising based on:
1) the context of the message. The text was sent as part of an ongoing business transaction between the parties, a transactional relationship that did not conclude until plaintiff completed his travel.
2) the content of the message. The text was limited to two specific statements:
• a confirmation of a booking, and
• a means to manage that booking,
both of which directly related to the specific business transaction. Even though the app – like Agoda’s website – contained certain promotions, the link to the app was included “to facilitate, complete, or confirm a commercial transaction” (and not to advertise the app’s commercial availability).
[N.D. CA; 5:16-cv-07243]
jbho: Perhaps most noteworthy, the courts declined to consider the texts as “dual-purpose.” HOWEVER, it did opine: “if the text message serves a “dual purpose” — that is, includes both advertising/telemarketing and merely informational or transactional communications — the messages are subject to the heightened express written consent requirements.”

A reminder that any incidental marketing makes the whole message marketing. So don’t try to overload operational messages with dubious content. The opinion cites a number of cases that have come down on both sides of the informational/marketing analysis. The difference remains a fine line, and ultimately boils down to an “eye of the beholder” analysis. Do you feel lucky?

For the record, Agoda’s terms stated:

By completing a booking, you agree to receive confirmation messages (email and/or SMS), as well as invitation emails to complete our guest review form which we will promptly send to you after your stay at the Accommodation, followed by one or more reminders. Completion is optional. For clarity, the confirmation and guest review communications (email, SMS) are transactional and are not part of the newsletters or marketing mails, from which you can unsubscribe (see our Privacy Policy for more details).

And the privacy policy stated:

Please note that the confirmation emails and text messages sent after your booking, as well as the guest review emails sent after your departure, are not marketing messages. These messages are part of your accommodation reservation process. Respectively, they contain information for you to check in at your booked accommodation, and tools to optionally rate that accommodation after your stay. You will continue to receive them, even if you have opted out of our marketing messages.

More samples worth considering as you draft your policies/T&Cs

Finally, note that this case was successfully removed to federal court (Santa Clara Sup. Ct.; 16CV302647). The court declined to consider the Singapore choice of law argument (to which plaintiff had agreed through the Terms), finding consent dispositive.
November 2018

Prescription Reminders Aren’t Emergency Calls

Smith v. Rite Aid
Motion to dismiss denied – Rite Aid allegedly made autodialed and prerecorded prescription reminder calls to plaintiff’s mobile, a number that had recently been reassigned to plaintiff. Plaintiff claimed she received such wrong number calls multiple times per week and often times multiple times per day. Plaintiff further alleged the messages did not contain a contact telephone number for Rite Aid, or give her a means of opting-out of receiving future calls.

Citing the 2015 FCC Omnibus Order, the court found that Rite Aid had arguably failed to meet the requirements necessary to qualify for the “Health Care Message” exemption, and plaintiff adequately alleged:
• Plaintiff never provided her number to Rite Aid
• Rite Aid did not provide a way to opt-out of future calls
• Rite Aid exceeded the permitted number of calls per day/week
Since the prescription reminders did not rise to the level of emergency or an “exigent healthcare” situation (Rite Aid did not claim the intended recipient would suffer death or serious injury if she did not receive the prescription medication), the motion to dismiss was denied.
[W.D. N.Y.; 6:17-cv-06044]
jbho: Interesting result. Will the determination of emergency will depend on the prescribed medication?

Or, since the court recognized plaintiff did not indicate whether she ever notified Rite Aid that she was receiving the calls by mistake, will a failure to attempt to opt-out ultimately preserve ’emergency’ status as in Lindenbaum v. CVS (N.D. OH; 1:17-cv-01863)?

For the record, the conditions for the Heath Care Message exemption cited by the court are:

1. voice calls and text messages must be sent, if at all, only to the wireless telephone number provided by the patient;
2. voice calls and text messages must state the name and contact information of the healthcare provider (for voice calls, these disclosures would need to be made at the beginning of the call);
3. voice calls and text messages are strictly limited to the purposes permitted … above; must not include any telemarketing, solicitation, or advertising; may not include accounting, billing, debt-collection, or other financial content; and must comply with HIPAA privacy rules;
4. voice calls and text messages must be concise, generally one minute or less in length for voice calls and 160 characters or less in length for text messages;
5. a healthcare provider may initiate only one message (whether by voice call or text message) per day, up to a maximum of three voice calls or text messages combined per week from a specific healthcare provider;
6. a healthcare provider must offer recipients within each message an easy means to opt out of future such messages, voice calls that could be answered by a live person must include an automated, interactive voice- and/or key press-activated opt-out mechanism that enables the call recipient to make an opt-out request prior to terminating the call, voice calls that could be answered by an answering machine or voice mail service must include a toll-free number that the consumer can call to opt out of future healthcare calls, text messages must inform recipients of the ability to opt out by replying “ “STOP,” which will be the exclusive means by which consumers may opt out of such messages; and,
7. a healthcare provider must honor the opt-out requests immediately.

September 2018

Termination Of Insurance Plan Not Sufficient To Revoke Consent

Wilkes v. Caresource
Defendant’s MSJ granted – Caresource allegedly made unsolicited autodialed and prerecorded health insurance calls to plaintiff’s mobile after she cancelled her family’s insurance plan, a plan obtained through the ACA Health Insurance Marketplace at ACA website healthcare.gov. All application information provided by plaintiff – including phone numbers – were provided to Caresource as part of the processes indicated at the ACA website.

The court found:
• plaintiff consented to the calls when she provided her number as part of the application for insurance
• simply canceling insurance coverage through the Health Insurance Marketplace was not sufficient to revoke consent to be called by Caresourse
• plaintiff did not revoke consent until she explicitly told Caresource to stop calling
• Caresource made no further calls after receiving that request
[N.D. IN; 4:16-cv-00038]
jbho: this ruling follows the logic of explicit revocation of consent introduced in Van Patten v. Vertical Fitness (9th Circ.; 14-55980)

It appears that even though plaintiff cancelled her insurance, Caresource was still able to leverage consent to make calls on potential future plans. Other courts have not been so kind, such as the 11th Circuit’s decision in Gamble v. New England Auto (11th Circ; 17-15343), where the court declined to enforce arbitration of TCPA claims, finding calls made after a loan had been paid in full were not arbitrable under an expired Loan Agreement.

Lesson may be to include terms in your user agreements that clarify any TCPA consents survive termination of the contract.

August 2018

Look-Through Liability Determines Robocalls Were Marketing

Legg v. PTZ Insurance
Plaintiff’s MSJ granted – PTZ allegedly made unsolicited autodialed and prerecorded message calls to plaintiff’s mobile.

Plaintiff claimed he provided his number during a pet adoption for purposes of the pet adoption. The adoption center sponsored a gift of 30 days of free pet insurance. Plaintiff accepted this in the paperwork he completed as part of the adoption. Additionally, plaintiff consented to receive marketing emails related to the services the adoption center provided, including marketing from third parties. However, he claimed he never consented to receive robocalls from anyone.

To complete the insurance registration, PTZ sent plaintiff an email, followed by four prerecorded telephonic reminders – at least one of which was the “Day Six” call below.

The email read:

Dear [customer],

You have only 24 hours left to confirm your (PTZ) 30-day Gift of Insurance. Click here to confirm your gift now before this offer expires.

Don’t forget that new adopters are also eligible for an $8.95 credit towards one of our comprehensive insurance policies; please call one of our agents at 1-877-291-1524 to find out about this upgrade today!

The “Day Two” call stated:

“Hi from the (PTZ) Insurance Team. This is a friendly reminder to please confirm your 30-day gift of insurance if you haven’t done so already. It’s easy, check your inbox for the (PTZ) email, click on the link, and confirm your gift. If you have already confirmed, press 1 now to speak to a representative to extend your gift for [ ] days at absolutely no cost to you. Have a great day and congratulations on adopting your new best friend.”

The court ruled that since the “Day Two” call referenced the email that “obviously touts the commercial availability of a product,” the “Day Two” call ‘introduced’ an advertisement, and required Prior Express Written Consent.

The “Day Six” call stated:

“Hello- We’re calling from (PTZ) Pet Insurance to remind you that when you adopted your pet, you were given a 30-day Gift of Insurance, and you only have [ ] day[ ] to activate it. Protect your pet from the unexpected and press 1 now to activate it or call 1-877-291-1524.”

The court ruled that on it’s face, there was insufficient evidence to determine whether the “Day Six” call was an advertisement. What happened when a recipient pressed 1 was contested, and unsuitable for summary judgment.

Despite the above, the court found that while plaintiff provided the adoption agency his phone number, and agreed to receive communications, all the paperwork and computer screen shots indicated that those communications would be by mail or email only. Thus, PTZ could not demonstrate it had either prior express consent for ‘operational’ reminders, let alone the Prior Express Written Consent required for marketing. No jury would reasonably believe that plaintiff consented to any robocalls, and plaintiff was entitled to summary judgment on all four calls.

Since PTZ failed to respond to Plaintiff’s willfulness allegations, they waived any argument to the contrary, and judgment of $6,000 in statutory damages was awarded to plaintiff (4 calls * $1,500).
[N.D. Ill; x:14-cv-10043]
jbho: bizarre. It appears whether the calls were adverting was irrelevant. There was no prior express consent – written or otherwise. Nonetheless, it is unusual for the courts to impose a look-through liability. Especially when that analysis is not relevant to the ultimate ruling. Perhaps it sets the stage for future arguments with PTZ’s parent company Pethealth.

Note also, that the motion was denied with respect to Pethealth (holding company that owned PTZ), as disputes remained as to its level of indolent in the PTZ robocalls.

Note also, that the court previously denied motions for class certification (Doc#223, Doc#287) based on the predominance of individualized issues of consent. Plaintiff has filed a third amended motion for class certification (Doc#414).

June 2018

Defendant Allowed to Seek Indemnification from Plaintiff’s Daughter

Tucker v. Credit One
Defendant’s motion for leave to file a third-party complaint granted – Credit One allegedly made some 250 autodialed and prerecorded debt collection calls to plaintiff’s mobile, calls about another person’s debt. Plaintiff claimed he had no relationship with Credit One, and calls continued despite informing Credit One it was calling a wrong number. Credit One filed a third party complaint against the person who provided the phone number (plaintiff’s daughter).

The court found Credit One sufficiently pled negligent misrepresentation claims, since the daughter falsely represented she owned and could lawfully be contacted at plaintiff’s number.

The court also found that the motion for the third party complaint was timely, since Credit One did not discover the circumstances around the phone number until April 2018, some six months after the initial deadline for filing motions. Credit One acted diligently and had shown good cause for modifying the deadline.

Finally, the court found that Credit One’s claims against the daughter were derivative of, and dependent on, plaintiff’s TCPA claims. The claims were timely, and would result in delays of only a few months, thus would not prejudice plaintiff’s claims.
[W.D. KY; 4:17-CV-00066]
jbho: Not over yet, but potentially an effective way to head off TCPA trolls.

For the record, language in the Cardholder Agreement stated:

“COMMUNICATIONS:

(a) You are providing express written permission and consent authorizing Credit One Bank or its agents to contact you at any phone number (including mobile, cellular/wireless, or similar devices) or email address you provide at any time, for any lawful purpose. The ways in which we may contact you include live operator, automatic telephone dialing systems (auto-dialer), prerecorded message, text/SMS message or email. Phone numbers and email addresses you provide include those you give to us, those from which you contact us or which we obtain through other means. Such lawful purposes include, but are not limited to: obtaining information; activation of the card for verification and identification purposes; account transactions or servicing related matters; suspected fraud or identity theft; collection on the Account; and providing information about special products and services. You agree to pay any fee(s) or charge(s) that you may incur for incoming communications from us or outgoing communications to us, to or from any such number or email address, without reimbursement from us.

(b) INDEMNIFICATION: If you provide telephone number(s) for which you are not the subscriber, you understand that you shall indemnify us for any costs and expenses, including reasonable attorneys’ fees, incurred as a result of us contacting or attempting to contact you at the number(s).

(c) COMMUNICATION REVOCATION: If you do not want to receive communications as described in the previous paragraph, you must: (i) provide us with written notice revoking your prior consent, (ii) in that written notice, you must include your name, mailing address, and the last four digits of your Account number; (iii) advise whether you would like communications to cease via mail, telephone number(s), email, text/SMS, or cease in all forms; (iv) if you are requesting communications to cease via telephone number(s) and/or email, please provide the specific phone number(s) and email address; (v) you must send this written notice to: Attention – Credit One Bank Customer Service, P.O. Box 98850, Las Vegas, NV 89193-8850…” (emphasis added)

An example you might want to include in your contracts/consent agreements.

Text Spam Suit Survives – For Now

Yates v. Checkers
Motions to dismiss denied – Checkers allegedly sent unsolicited text messages to plaintiff’s mobile. Plaintiff claimed Checkers ran promotions such as:

“Text BURGER to 88001 and get a free [promoted burger].”

However, plaintiff claims, when she texted “BURGER” she did not receive a coupon/voucher for a free burger, but a text asking her to enroll in a recurring text message program:

“REPLY with Y to get your FREE [promoted product] coupon & other deals from Checkers/Rally’s at this #. No purchase necessary to join.”

Plaintiff claimed this text violated the TCPA, since the text was not responsive to her initial text request (i.e., she asked for a coupon, and did not consent to a text asking her to enroll in a larger program). Plaintiff further alleged she receive another 10 texts, only one of which included opt-out instructions.

The court found that despite a lack of specificity on phone number(s) at issue, the number of texts received, as well as the dates and content of those texts, the first text alone was sufficient “for her complaint to scrape past the pleading requirements.” However, plaintiff was ordered to provide a more definite statement alleging the approximate date, time, and content of each text message that was the subject of the case.
[N.D. Ill.; 1:17-cv-09219]
jbho: a reminder to carefully consider your onboarding flows, and the promises you make in your CTAs. Do they meet customer expectations? Are any enrollment obligation clearly and conspicuously disclosed?

May 2018

Predictive Dialer Is Still An ATDS

Reyes v. BCA Financial Services
Plaintiff’s MSJ granted (ATDS claims) – BCA allegedly made autodialed debt collection calls to plaintiff’ mobile. Plaintiff claimed the calls concerned the debt of another party. Plaintiff further claimed she had no relationship with BCA, and never provided BCA her phone number. The sequence of events were as follows:
• five calls unanswered
• plaintiff answered 6th call, pressed (2) to indicate a wrong number had been reached
• no further calls were made
Two of the six calls used an IVR (artificial/prerecorded voice)

The court found the calls made using a Noble Systems predictive dialer were ATDS calls:
• the predictive dialer “automatically dials telephone numbers without human intervention”
• the dialer was fed phone numbers from a separate collection-software system
• there was no human intervention

In support of the decision, the court found that in ACA v. FCC (D. D.C.; 15-1211), the DC Circuit recognized the dichotomous view on predictive dialers in the 2015 FCC order – that equipment must be able to generate and dial random or sequential numbers to be an ATDS, but equipment can meet the statutory definition even if it lacks that capacity. However, the D.C. Circuit didn’t favor one interpretation over the other. It simply rejected the “FCC’s Janus-like approach.” The DC Circuit stated, “(i)t might be permissible for the Commission to adopt either interpretation.” Therefore, the court determined that consistent with the FCC’s 2003, 2008, and 2012 orders, the Noble Systems predictive dialer – as used here – was an ATDS.

The court denied plaintiff’s motions for treble damages, finding there was insufficient evidence to determine willful or knowing violations. Additionally, plaintiff’s ‘robocall’ motions were denied, since she did not allege use of an artificial or prerecorded voice in her initial complaint.
[S.D. FL; 1:16-cv-24077]
jbho: The court distinguished its decision from Marshall v. CBE (D. NV; 2:16-cv-02406) below, finding the use of the Manual Clicker Application (MCA) in conjunction with the predictive dialer led to a different conclusion. In the present case, the Noble predictive dialer was “an ATDS as currently configured and utilized.”

The court also stated that even in the wake of ACA v. FCC, those prior orders remained binding on the court. Even though the decision in ACA v. FCC was also binding the court, it only addressed the 2015 order, and not the previous orders.

In rejecting willful claims, the court noted that BCA obtained plaintiff’s number from a debtor client, did not ask the debtor to verify the number was correct, and it was not BCA policy to manually dial a telephone number before autodialing to verify the called party was the intended recipient. However, BCA made efforts at compliance through procedures and employee training. It was ultimately for a jury to decide if these violations were unfortunate accidents or BCA should have known better.

Texts Not Autodialed

Herrick v. GoDaddy
Dismissed with prejudice – GoDaddy allegedly sent an autodialed marketing text to plaintiff’s mobile after plaintiff created a GoDaddy account. Plaintiff alleged consent to receive marketing texts was not asked during signup, nor were the necessary disclosures provided to obtain appropriate consent.

The court found the 3Seventy Platform used by GoDaddy was not an ATDS, since it did not have the ability “to store or produce numbers to be called, using a random or sequential number generator.” In light of the ACA v. FCC (D. D.C.; 15-1211), broadening the definition of an ATDS to include any equipment that dials from a list would improperly render the limiting phrase “using a random or sequential number generator” superfluous. Quoting Marks v. Crunch, the court reiterated, “[i]f the statute meant to only require that an ATDS include any list or database of numbers, it would simply define an ATDS as a system with ‘the capacity to store or produce numbers to be called.'”

The court also found the steps involved in uploading lists, configuring and executing campaigns constituted ‘human intervention’ sufficient to show that calls were not autodialed (and no consent was needed).
[D. AZ; 2:16-cv-00254]
jbho: another interesting result in the wake of the ACA v. FCC decision. Interesting that here, the court decided that the DC Circuit decision invalidated all historical rulemaking.

“(in previous cases) courts were bound and guided by the now-defunct FCC interpretations regarding this function. As such, the Court is also not persuaded to follow these holdings, particularly because the FCC interpretations relied upon by these courts were driven by policy considerations and not the plain language of the statute.”

Contrast this with the decision in Reyes v. BCA (S.D. FL; 1:16-cv-24077) above, where the court found the ACA v. FCC decision only invalidated the 2015 rulemaking, and predictive dialers remained ATDSs. Although there, the ‘human intervention’ component was lacking.

No Coverage For $8 Million Grubhub Text-Spam Settlement

Flores v. Ace American Insurance
Dismissed – In Flores v. GrubHub (Cook Co. Cir. Ct.; 2016 CH 4576), GrubHub allegedly forced users to provide telephone numbers when signing up for their services, but never obtained written consent to ‘bombard’ users with (ATDS) telemarketing texts. The parties ultimately reached an $8 Million settlement. Rather than pay the settlement itself, GrubHub assigned its rights in its insurance policies over to plaintiff.

The court found the insurer had no duty to defend GrubHub, since the insurance policy explicitly precluded coverage for:
• unsolicited electronic dissemination of faxes, emails or other communications … to multiple actual or prospective customers
• violations of consumer protection laws

The court found nothing in the exclusion required text messages sent to customers be identical or sent at the same time.

Perhaps most interestingly, the court rejected plaintiff’s argument that the TCPA was a ‘privacy regulation’ rather than a ‘consumer protection law, finding: “‘privacy regulation’ refers to laws associated with the ‘control and use’ of personal data that require commercial entities collecting such data to ‘adopt specific privacy or security controls’ to avoid identity theft. The purpose of the TCPA is not to avoid identity theft, and the TCPA does not require commercial entities to adopt privacy or security controls. The claims brought in the Underlying Complaint do not relate to ‘privacy regulations’.”
[S.D. N.Y.; 1:17-cv-08674]
jbho: a reminder to make sure your insurance policies are up to date.

April 2018

OK To Require Written Revocation of Consent

Barton v. Credit One
Defendant’s MSJ granted – Credit One allegedly made some 60 autodialed and prerecorded debt collection calls to plaintiff’s mobile. Calls allegedly continued despite plaintiff’s request they cease.

The court found that plaintiff consented to calls by providing his number on a credit application/agreement – an agreement that indicated:

“[y]ou are providing express written permission authorizing Credit One Bank or its agents to contact you at any phone number (including mobile cellular/wireless, or similar devices) or email address you provide at any time, for any lawful purpose. The ways in which we may contact you include live operator, automatic telephone dialing systems (auto-dialer), prerecorded message, text message or email.”

With respect to plaintiff’s claims he orally revoked consent, the court found plaintiff did not sufficiently revoke his consent under the agreement – an agreement that required consent to be revoked in writing:

“COMMUNICATION REVOCATION: If you do not want to receive communication as described [herein], you must (i) provide us with written notice revoking your prior consent, (ii) in that written notice, you must include your name, mailing address, and the last four digits of your Account number … (iv) if you are requesting communications to cease via telephone(s) and/or email, please provide the specific phone number(s) and email address.”

Once a written cease and desist request was received from plaintiff’s counsel, Credit One stopped calling. Thus, defendant’s MSJ was granted.
[N.D. OH; 1:16-cv-02652]
jbho: I included the relevant passages above in case you want to copy/paste them into your own contracts.

No guarantee this will fly in all circuits, but an interesting evolution in the bounds of consent revocation.

Manual Clicker Application (MCA) not an ATDS under ACA v. FCC

Marshall v. CBE
Defendant’s MSJ granted in part – CBE allegedly placed some 189 autodialed debt collection calls, as often as twice a day, to plaintiff’s mobile number; a number allegedly obtained through skip tracing. Plaintiff claimed calls continued despite her requests they cease. Plaintiff further claimed many calls were ‘heated,’ and that CBE called her at least 10 times at her place of employment. Claims were filed under the TCPA, FDCPA, and the Nevada Deceptive Trade Practices Act (NDTPA).

On TCPA claims, the court found that in light of the recent DC Circuit decision in ACA v. FCC, the calls in question were not made with an ATDS. In the instant case CBE’s Manual Clicker Application (MCA) required a CBE agent to click a bull’s-eye on a computer screen before a call could be placed. Once a CBE agent clicked the bull’s-eye, a call was passed through to a LiveVox system that connected a CBE agent with the person to whom the call was placed. The parties did not dispute the MCA was not an ATDS, and plaintiff failed to establish that the Live Vox system had the capacity to store or produce telephone numbers to be called, using a random or sequential number generator.

The court futher rejected the contention that Live Vox could dial from a list of numbers (i.e., was a predictive dialer) and was thus an ATDS. It was undisputed that human intervention was integral to initiating outbound calls. “Therefore, to the extent the FCC’s previous orders remain intact, the human intervention element weighs in favor of a finding that the MCA, in conjunction with Live Vox, is not an ATDS.” Defendant’s MSJ on TCPA claims was granted.

On FDCPA claims, the court found that whether the volume of calls constituted harassment (15 USC §1692d) was a question for a jury. However, since plaintiff failed to allege any unfair or unconscionable acts independent of call volumes, defendant’s MSJ on those claims (15 USC §1692f) was granted.

On NDTPA claims, the court ruled that debt collection did not fall under the ‘lending practices’ contemplated under the NDTPA (applied only to transactions of goods and services), and thus granted defendant’s MSJ on NDTPA claims.
[D. NV; 2:16-cv-02406]
jbho: the first case I’ve seen that applies the recent decision in ACA v. FCC. Per the court:

“In light of (ACA V. FCC) the Court will not stray from the statute’s language which mandates that the focus be on whether the equipment has the ‘capacity’ to store or produce telephone numbers to be called, using a random or sequential number generator … The D.C. Circuit’s decision is binding on this Court because appellate courts have exclusive jurisdiction to determine the validity of all FCC final orders and the Judicial Panel on Multidistrict Litigation has consolidated the various appeals in that case in the D.C. Circuit.”

The first of many wins for the defense?

March 2018

Fax Need Not Make Overt Sales Pitch To Be Advertising

Mussat v. RELX (Enclarity)
Motion to dismiss denied – Enclarity allegedly sent three unsolicited fax advertisements. Plaintiff claimed that although her fax number was published on her (business) website, her website specifically stated “Do not Fax Advertisements Please.” Plaintiff further alleged the 2nd & 3rd faxes were sent despite a written (faxed) request to cease further faxes.

Enclarity argued the faxes were not advertisements, but sent as part of a data quality campaign, to confirm contact information for any potential future sending of PHI.

The court found that any marketing content was enough to make a fax an advertisement, and declaring the availability of a service plausibly served as a pretext to an advertisement. “The fact that the fax also seeks to verify the recipient’s contact information does not eliminate its utility as an advertisement … The point of the pretext doctrine is that a fax that prompts a recipient to take action that necessarily exposes the recipient to advertising of the sender’s goods or services falls within the ambit of the communications prohibited by the (TCPA), even if that fax does not itself provide information about the commercial availability or quality of the sender’s goods or services.”

Therefore, plaintiff’s allegations were sufficiently to pled to survive a motion to dismiss.
[N.D. Ill.; 1:16-cv-07643]
jbho: a reminder of the fine line between operational and marketing messages, and that the courts will engage in some look-through liability in determining whether a message, as part of a larger program, is ultimately intended to market goods or services. Per the court, “this Court and other district courts have found that the plaintiff is not limited to the fax itself when alleging a claim under the TCPA.”

Controversial “No ATDS Harm” Opinion Reversed

Romero v. Department Stores National Bank
Reversed and remanded (unpublished) – Department Stores National Bank (DSNB) allegedly made nearly 300 autodialed and prerecorded debt collection calls, multiple times per day, from multiple numbers, to plaintiff’s mobile. Calls allegedly continued despite plaintiff’s request they cease. Plaintiff admitted she owed the debt and had provided her number, so sought compensation only for calls made after she asked DSNB to stop calling.

The district court dismissed claims finding plaintiff had no standing for unanswered calls, and for the two calls she answered there was no difference in harm from a manual or autodialed call (“plaintiff cannot have suffered an injury in fact as a result of a phone call she did know was made. Moreover, even for the calls Plaintiff heard ring or actually answered, Plaintiff does not offer any evidence of a concrete injury caused by the use of an ATDS, as opposed to a manually dialed call“).

The appellate court found the court erred in determining plaintiff had no standing, as the district court reached its decision prior to the 9th Circuits holding in Van Patten v. Vertical Fitness Group (9th Circ.; 14-55980) that “a violation of the TCPA is a concrete, de facto injury.” The appellate court further clarified that any unsolicited contact constituted a concrete harm regardless of caller or content (i.e., the TCPA covers debt collection calls).

Finally, disputes regarding consent or revocation of consent related to the merits of plaintiff’s TCPA claims, not to her standing.
[9th Circ.; 16-56265 (Orig: S.D. CA; 3:15-cv-00193)]
jbho: another reminder the TCPA applies to debt collection calls.

Note that the court also reversed summary judgement on Rosentahal Act claims, finding the nearly 300 calls, multiple times per day, from multiple numbers she could not recognize, after plaintiff communicated she could not pay and asked for calls to stop, plausibly represented an intrusion. “When considering the evidence here in the light most favorable to Romero, a reasonable jury could conclude (the calls) would be highly offensive to a reasonable person.”
February 2018

Two B2B Calls Concrete Harm, Can’t Pick Off Plaintiff

Abante Rooter and Plumbing v. Oh Insurance
Motion to dismiss denied – Oh Insurance (an Allstate reseller) allegedly made unsolicited autodialed and prerecorded telemarketing calls to plaintiff’s employee’s mobile, a mobile used for work purposes. Plaintiff claimed it had no relationship, nor any previous contact, with Oh Insurance, and never consented to the calls.

The court found the two calls made (one to voicemail, and the other answered by Abante’s principal) were enough to sustain allegations of concrete harms, “including temporary seizure and trespass to its cellular phone line, invasion of its principal’s privacy causing him annoyance, and the interruption of the operation of its business.” Moreover, Abante itself had standing (rather than its employee), since the employee was working for Abante at the time of the calls, wasting (allegedly) the resources of Abante. The court rejected Oh’s argument that the de minimis injury of two calls was insufficient to confer standing, noting that other courts have found a single prerecorded call constituted a concrete injury under the TCPA (Susinno v. Work Out World [3rd. Circ 16-3277]).

The court also rejected a motion to dismiss based on an unaccepted offer of judgement, finding a settlement offer and deposit of an amount into an escrow account that would fully satisfy the plaintiff’s claims did not moot them (by the escrow agreement’s own terms, the bank is not empowered to release the funds without an order of the court directing it to do so). And as the Supreme Court recognized, “an unaccepted offer is not binding on the offeree” (citing Fulton Dental v. Bisco [7th. Circ.; 16-3574]).
[N.D. Ill.; 1:15-cv-09025]
jbho: Oh tried to argue Abante, as a corporation, had no right to privacy, finding, “arguments that Abante has no right to privacy because it is a corporation and not a natural person, or that Abante would otherwise be unable to prevail on common law claims similar to those prohibited by the TCPA similarly miss the mark. Abante’s claimed injuries have a close relationship to common law causes of action for invasion of privacy, nuisance and trespass to chattels, even if they would not give rise to a those claims under common law. No more is required.”

Note also that Abante has enjoyed some measure of success in this area, wining a $9 Million settlement against Pivitol Payments
(Abante Rooter and Plumbing v. Pivotal Payments [N.D. CA; 3:16-cv-05486]), as well as reaching an undisclosed settlement against Sears (Abante Rooter & Plumbing v. Sears [N.D. CA; 4:17-cv-03312])

Motel Chain Continues Wrong Number Fax TCPA Charge

Gorss Motels v. AVM Enterprises

Motion to dismiss denied – AVM allegedly sent unsolicited faxes, with insufficient opt-out notices, to Gorss properties. AVM argued neither consent nor opt-out notices were required, as the (solicited) faxes were sent in the context of its Established Business Relationship (EBR) with Wyndham Worldwide hotels.

The court found that plaintiff alleged AVM – not Wyndham – sent the faxes, and that was sufficient to survive a motion to dismiss. Whether the faxes were solicited, there existed an EBR, or the faxes contained a proper opt-out notice were factual disputes to be addressed at later stages of the litigation.
[D. Conn.; 3:17-cv-01078]
jbho: interesting that so many companies seem to have missed the fact that Gorss doesn’t want Wyndham communications. Remember that Sprint (D. Conn; 3:17-cv-00546) and Land’s End (D. Conn.; 3:17-cv-00010)are also facing Fax-Spam allegations by Gorss.

By the way, it does appear that Gorss has a franchise agreement with Super 8 (a Wyndham brand). However, the court declined to say the faxes were communications from Wyndham to its franchisees, or any consent to receive Wyndham directed faxes was derived from that relationship.

Case Proceeds In Light Of Conflicting Evidence

Soukhaphonh v. Hot Topic
Defendant’s MSJ denied – Hot Topic allegedly sent unsolicited (ATDS) texts to plaintiff’s mobile promoting Hot Topic merchandise. Plaintiff claimed she began receiving texts after checking out – as guest – on Hot Topic’s website. Hot Topic argued it had consent when plaintiff provided her number during checkout, which included a ‘pre-checked’ box that was adjacent to the statement: “Yes, I want to receive text messages about special events and offers.” Plaintiff claimed she received an additional marketing text after replying STOP to the initial welcome text.

The welcome text read:

Thanks! Ur subscribed to Hot Topic Alerts: 8 msg/mo. Reply STOP to Cancel, HELP for Help. For info visit http://www.4u2entr.com/hottopic info. Msg&Data rates may apply.

The disputed text read:

Hot Topic Hurry, last day to shop online and get your stuff by Christmas! http://bit.ly/1Rd47Fd Msg&Data rates may apply. Reply STOP to quit.

The court found the Hot Topic’s own records and employee testimony indicated that the checkout process was not the only way plaintiff could have been opted-in to receiving the texts. Since there was a genuine dispute of material fact regarding whether Plaintiff opted-in to receiving text messages, Hot Topic’s motion for summary judgement was denied.

The court also chastised the parties for frivolous evidentiary objections and discovery motions. As a result, the court indicated its intention to appoint a Special Master for the resolution of any further discovery disputes, with a fee-shifting arrangement to pay for the Special Master. The parties were ordered to meet and confer and, by no later than February 28, 2018, file a Joint Status Report regarding new proposed pretrial and trial dates and deadlines.
[C.D. CA; 2:16-cv-05124]
jbho: sounds like Hot Topic may not have prepared very well for its depositions. Another reason you need to understand technology to make sure (1) systems are configured correctly in the first place, and (2) if you need to discuss in a compliance setting, you know what the heck you are talking about. The dicta indicates uncertainty among Hot Topic employees as to the precise mechanics by which a change in a user account database would be reflected in the consent records.

Also interesting is the implication that prior express consent must be opt-in. per the court “Regardless of whether the text message satisfies the regulatory definitions of ‘advertisement’ or ‘telemarketing,’ Hot Topic’s defense hinges upon the premise that Plaintiff provided prior express consent by opting-in to receiving text message alerts.” However, the court did not go so far as to say a pre-checked tickbox was not an opt-in.

January 2018

Unanswered Calls Are Still “Made”; Consent Can Be Orally Revoked

Patterson v. Ally
MSJs denied – Ally allegedly made some 1,200 autodialed and prerecorded debt collection calls to plaintiff’s mobile. Plaintiff claimed calls continued despite three requests they cease.

The court found that the predicative dialer used by Ally constituted an ATDS (and the court was bound by FCC rulemaking), plaintiff was the ‘called party,’ and any call attempted was subject to liability under the TCPA (Ally failed to cite any legal authority that would distinguish ‘initiate’ from ‘make’ under the TCPA).

The court further ruled that plaintiff initially consented to calls when he provided his number on the credit application. However, contrary to Ally’s contention, plaintiff had every right to (orally) revoke that consent. Whether any revocation occurred was a factual matter reserved for a jury, beyond the purview of summary judgment.
[M.D. FL; 3:16-cv-01592]
jbho: the court declined to embrace the reasoning in Reyes v. Lincoln Auto (2nd Circ.; 12-2104) where the court found the TCPA did not permit a party who contractually agreed to be contacted as part of a bargained for exchange to unilaterally revoke that consent. Instead, it preferred the logic of the 3rd Circuit (Gager v. Dell – 3rd Circ.; 12-2823) & 11th Circuit (Osorio v. State Farm – 11th Circ; 13-10951, Schweitzer v. Comenity Bank – 11th Circ.; 16-10498), finding consumers may revoke consent (in whole or in part) in any manner that clearly expresses a desire not to receive further messages – including orally. “Since 2015, decisions from within the Circuit have favored a Gager-like, common-law approach to consent that permits oral revocation even in the presence of a contract.”

The court did go on to comment that even accounting for language in the Osorio and Schweitzer opinions indicting a debtor may orally revoke consent “in the absence of any contractual restriction to the contrary,” the Ally agreements – even when viewed in conjunction – provided an irrevocable consent only for telemarketing calls, and not debt collection calls.

So the lesson learned here may be to carefully and thoroughly draft your agreements.

Telephone Dialing System Not an ATDS Under the TCPA

Ferrer v. Bayview Loan Servicing
Defendant’s MSJ granted – Bayiew allegedly made some 53 autodialed and prerecorded debt collection calls to plaintiff’s mobile. The calls concerned a mortgage loan debt that was originated by Chase, with servicing transferred to M&T bank, around the same time debt collection calls started.

The court found plaintiff was not entitled to relief for (the nine) calls made to a number she did not own (where she was not the ‘called party’).

The court further found that the remaining 44 calls to plaintiff’s mobile were not made using an ATDS. The Avaya X1 Platform, which operated separately from Bayview’s servicing platform, could not place calls without human input (calls were manually dialed using a computer keyboard and mouse), and was not able to dial predictively, store, or produce telephone numbers independently. Since the remaining 44 calls were not made using an ATDS, the court need not consider the capture/transfer of consent.
[S.D. FL; 1:15-cv-20877]
jbho: there are other FCCPA/FDCPA aspects to the case, but I thought the most interesting part of the decision was the relatively brief description of how the Avaya X1 Platform was not an ATDS. Something to consider in planning alternative call methods for skip-traced numbers.

Prescription Reminders Are Emergency Calls

Lindenbaum v. CVS
Defendant’s motion for judgment on the pleadings granted – CVS allegedly made unsolicited prerecorded subscription reminder calls to plaintiff’s mobile, a number on the national Do Not Call list. Plaintiff claimed she had no previous relationship with CVS, the calls were intended for the previous phone number subscriber, and CVS lacked Prior Express Written Consent to robocall to her.

CVS argued that calls were made for an ’emergency purpose,’ and thus exempt from TCPA liability. The court agreed, finding the calls related to a situation affecting the health and safety of the consumer (information about where, when, and how to refill a prescription), and were necessary (information critical in preventing a major health emergency).
[N.D. OH; 1:17-cv-01863]
jbho: interesting that the court went beyond the ‘health care message‘ interpretation employed by other courts, so consent was never an issue. If all health care calls are made for ’emergency purposes,’ then it would seems the health care exception introduced in the 2012 “Robocall Rules” is rendered moot. Unless the determination must be made on a case by case basis. For example, calls on refills for a heart medication may be an emergency, but calls for Viagra refills may not?

However, the court seemed to contradict itself by suggesting that consent for ’emergency calls’ could be revoked. The calls here were exempted as ’emergency calls’ (in part) since plaintiff never tried to stop them. The court declined to adopt the reasoning in St. Clair v. CVS (N.D. CA; 1:16-cv-04911), where the court found prescription reminder calls did not fall under the ’emergency purposes’ exception since the recipient specifically asked CVS to stop calling. Had there been an express revocation of consent, would the court have reclassified the calls here?

For the record, and per the dicta:
47 U.S.C. § 227(b)(1)(A) exempts from liability “a call made for emergency purposes.” 47 C.F.R. § 64.1200(f)(4) defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.”

December 2017

Multiple Forms Mean Individualize Consent Predominates; Individual Claims Continue On Revocation of Consent

Ginwright v. Exeter Finance
Class certification denied – Exeter Finance allegedly made autodialed debt collection calls to plaintiff’s mobile. Plaintiff claimed he never consented to the calls, on some occasions he received more than 5 calls in 24 hours period, and calls continued despite his requests they cease.

On motion for summary judgement, it was discovered plaintiff provided his phone number to an auto dealership when purchasing a vehicle. The dealership then shared his information with financing companies willing to fulfill his credit request. The dealership application (contract) included clauses indicating consent to receive autodialed and prerecorded messages. The application (contract) also authorized the dealership to provide his application to financial institutions. In this case Exeter agreed to finance the purchase.

Calls were made with an Aspect dialer, and calls / call notes were stored in a Shaw system. Records showed Exeter made over 1,800 calls to plaintiff between June 11, 2013 and July 30, 2015, up to as many as 12 times per day. An unspecified number of calls were initiated by plaintiff, during which he confirmed his mobile number, but did not necessarily consent to calls. Although a review of 89 call recordings showed no express revocation of consent by plaintiff, this was not the “entire universe” of calls.

On Exeter’s motion for summary judgement, the court found:

• calls were made with an ATDS
• plaintiff consented to calls when he provided his phone number on the credit application which he authorized to be shared with Exeter in order to finance his vehicle purchase (no analysis of subsequent calls was needed)
  HOWEVER
• there was a genuine issue of material fact as to whether plaintiff had revoked consent

Therefore Exeter’s motion for summary judgement was denied.

On plaintiff’s motion for class certification, the court found consent (or lack thereof) was not a common issue. Once Exeter purchased a contract, it stored an electronic copy of whatever credit application and retail installment contract forms were signed by the customer at a dealership. The particular terms of Exeter’s agreements with its customers, such as enforceable arbitration agreements, class action waivers, and consent to telephone contact, therefore varied from customer to customer depending on the dealership at which the loan originated. So the individualized issues relating to consent and revocation predominated, and the motion for class certification was denied.
[D. MD.; 8:16-cv-00565]
jbho: the court rejected the finding Reyes v. Lincoln Automotive Financial Services (2nd Circ.; 12-2104), where the court ruled consent obtained as a “bargained-for consideration in a bilateral contract” could not be revoked. Even so, said the court, “it is not clear that the consent clause in the Credit Application could be construed as a bargained-for contract term,” since Exeter was not a party to the application. Something to keep in mind of trying to draft contracts that include an irrevocable TCPA consent.

One could argue plaintiff’s claims he revoked consent were not supported by the record. 89 call recordings seems like a lot. However, when considering the “entire universe” of calls, those 89 only represent about 5% of calls made (89/1,800). I wonder if defendant could mathematically show the sample used produced a statistically significant result that plaintiff did not revoke consent? 

Finally, also worth noting, the court essentially confirmed the Aspect dialer is an ATDS.

November 2017

Yes, Liability For Wrong Number Calls To VoIP Line

Baemmert v. Credit One
Plaintiff’s MSJ granted – Credit One, through its agents, allegedly made some 60 autodialed debt collection calls over 12 days to plaintiff. Plaintiff claimed he did not have a Credit One credit card, and calls continued despite his requests they stop. The calls were made to a disconnected number, however plaintiff used a mobile app (TextMe) that allowed calls to be made/received when connected to WiFi. App calls were charged on a ‘credit’ basis, which could be purchased through the app. Plaintiff claimed the app charged for both outbound and inbound calls.

The court found the calls were plausibly made from an ATDS, and plaintiff sufficiently established calls were made to a “service for which the called party is charged for the call” (47 USC §227(b)(1)(A)(iii)), as credits were used on a per call basis. The court declined to consider declaration by TextMe CFO indicating the app did not charge for inbound calls at the time plaintiff received them, ruling Credit One failed to disclose the CFO as a witness in its initial Rule 26 disclosures, and presented the declaration for the first time after plaintiff moved for summary judgment.

The court did rule that plaintiff failed to show all calls were made from an ATDS, so the court could not determine damages until after trial.

The court dismissed invasion of privacy claims under Wisconsin law, as Wisconsin precedent held that unwanted phone calls were not a basis for an invasion of privacy claim.
[W.D. WI; 3:16-CV-00540]
jbho: A reminder that calls to VoIP numbers can carry liability. Although the court agreed the disconnected number was not “assigned to a cellular service,” the per-call charges were critical to inclusion under the TCPA. Compare the finding here to the finding in Breda v. Cellco Partnership case – directly below – where the court ruled a flat-fee VoIP plan was not covered under the TCPA.

Note also that since Plaintiff asked Credit One stop calling, the court ruled the TCPA violations were willful and knowing (i.e., $1,500 per call). So another reminder that when someone says stop calling, STOP CALLING!

Interestingly, on 22 Nov, the case was case stayed (Doc#96) for 90 days or until a decision is published in the ACA challenge to the FCC’s 2015 Order, finding the (contested) definition of an ATDS was a critical issue in this case.

No Liability For Wrong Number Calls To VoIP Line

Breda v. Cellco Partnership D/B/A Verizon
Defendant’s MSJ granted – Verizon allegedly made autodialed and prerecorded debt collection calls about another user’s account to plaintiff’s VoIP number – a former mobile number that had been reassigned to a VoIP service. Plaintiff claimed she was not a Verizon customer, and that calls continued despite her requests they stop calling her (wrong) number.

The court ruled that the calls were not covered under the TCPA since (1) the calls were not made to a cellular telephone service, and (2) plaintiff was not charged for the calls.

(1) The court found nothing in FCC rulemaking to indicate that VoIP was a cellular service, and considering the consumer-facing nature of the service, the court here considered – as have other courts – VoIP telephone services to be distinct from cellular telephone services. Additionally, the phone was listed in public records as a landline, and there was no reason for Verizon to believe the number was a cellular number. Therefore, the VoIP number was really a “wireline” (landline) number.

(2) Since plaintiff paid a flat rate for her VoIP service, irrespective of the number of calls received, with no pro rata charges for the relevant calls, the calls were not covered under “charged for the call” provisions of 47 USC §227(b)(1)(A)(iii).
[D. Mass.; 1:16-CV-11512]
jbho: So it appears liability for VoIP calls turns on how calls are billed. Here, a flat-rate plan, with no additional or incremental per call charges meant the recipient was not “charged.” Compare the finding here to the finding in Baemmert v. Credit One – directly above – where the court ruled a plan with per-call charges meant the calls were covered under “charged for the call” provisions of 47 USC §227(b)(1)(A)(iii).

As a refresher, 47 USC §227(b)(1)(A)(iii) says, “It shall be unlawful … to make any (robo)call … to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call, unless such call is made solely to collect a debt owed to or guaranteed by the United States” (emphasis added).

Million Dollar Settlement In Revived Class Action

Brinker v. Normandin’s
Preliminary Settlement Approval – Normandin’s, through its agents, made unsolicited prerecorded telemarketing calls to plaintiffs mobiles, one of which was on the national Do Not Call list. Although customers of Normandin’s, plaintiffs claimed they never consented to the telemarketing Robocalls.

Highlights include:

• $90 gift certificate for each class member (8,313 members)
  • or may opt for $40 in cash
• $11,000 for class representatives
  • $10,000 for lead plaintiff (Brinker)
  • $1,000 for each supporting plaintiffs (Rugg, Sanders)
• $150,000 for class counsel

[N.D. CA; 5:14-cv-03007]
jbho: note that Normandin’s had initially won a dismissal, with the court finding the limited number of calls (5 calls to plaintiff Brinker, 4 to plaintiff Rugg, and 5 to plaintiff Sanders) were injuries too minimal to establish standing. But that dismissal was reversed after the 9th Circuit’s ruling in Van Patten v. Vertical Fitness (9th Circ.; 14-55980), where the court ruled any violation of the TCPA is a concrete, de facto injury.

October 2017

Single Fax Enough For Standing

America’s Health & Resource Center (AHRC) v. Promologics (d/b/a Health-Scripts)
Motion to dismiss denied – Health-Scripts allegedly sent an unsolicited fax that failed to include the statutorily required opt-out notice. Plaintiffs America’s Health & Resource Center (AHRC) and Affiliated Health Group claimed no existing business relationships existed with Health-Scripts, and plaintiffs had not otherwise consented to the faxes. Plaintiffs further alleged the opt-out provided was misleading, as submitting an opt-out request required agreeing to receive additional marketing.

The court found that the fax was arguably a solicitation, as the FCC has stated that “messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements under the TCPA’s definition.” Therefore, discovery was needed to clarify whether products or services would be advertised at the seminar.

The court also found that an unsolicited fax, by its nature, invaded the privacy and disturbed the solitude of recipients, and a plaintiff alleging a violation under the TCPA need not allege any additional harm beyond the one Congress has identified.

Finally, the court ruled that ownership of the fax machine was not relevant to determining a TCPA violation (AHRC owned the paper/toner used & Affiliated owned the telephone line, fax number, and fax machine). “Plaintiffs collectively may enjoy only one recovery for the single TCPA violation they allege … Defendants furnish no authority for their argument that a single transmission of a junk fax can only ever implicate one plaintiff.”

However, the court did dismiss conversion claims, finding the actual damages caused by a single three-page fax were de Minimis, and insufficient to state a claim.
[N.D. Ill.; 1:16-cv-09281]
jbho: interesting that the court appeared to willing to engage in a look-though liability in determining whether the fax was an advertisement.

Also interesting was the focus on the opt-out notice. Health-Scripts argued the alleged opt-out notice violation was irrelevant, since alleged injuries of lost paper and toner, interference with Affiliated’s use of its fax machine and phone line, and wasted employee time would have been the same even if the fax included the TCPA-required opt-out notice. But the court ruled “post-Spokeo courts in this Circuit have repeatedly held that mere receipt of a fax alleged to lack TCPA opt-out notices constitutes sufficient harm for purposes of Article III standing.” So looks like plaintiffs may be able to retrieve damages for two TCPA violations from that single fax?

Discovery Required To Determine Agency Relationship

Vessal v. Alarm.com
Motion to dismiss denied in part – Alarm.com, through its agents, allegedly made autodialed, prerecorded telemarketing calls to plaintiff’s mobile, a number on the national Do Not Call list. Calls allegedly continued despite plaintiff’s requests they cease. Plaintiff claimed she never provided her number to Alarm.com, and was not an Alarm.com customer.

The court found that since Alarm.com did not dispute it used 3rd-party dealers to sell its products, it was sufficiently on notice to warrant discovery (“existence of an agency relationship is usually a factual question“). Thus to court declined to dismiss TCPA claims at the motion to dismiss phase.

The court dismissed fraud claims, finding that calls from several different parties selling the same product did not constitute a deceptive or unfair practice under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA). Furthermore even if post opt-out calls were oppressive, plaintiff did alleged any actual pecuniary loss under the ICFA (“usage of her telephone services, loss of cell phone capacity, and battery life, are not the kind of injuries that qualify as actual damage under the ICFA“).
[N.D. Ill; 1:17-cv-0218]
jbho: not necessarily a slam dunk, since the court did state: “Plaintiff’s agency theory of liability is sufficient to put defendant Alarm.com on notice, but the allegations are quite slim. The only allegations in the complaint to establish any sort of connection between Alarm.com and the callers are made on information and belief and the assertion that some of the callers identified Alarm.com as their web address.”

Stay tuned…

Texting A Link To An App Is Marketing?

San Pedro-Salcedo v. Häagen-Dazs
Motion to dismiss denied – Haagen-Dazs allegedly sent an unsolicited marketing text to plaintiff’s mobile. Plaintiff claimed she provided her number orally in order to join a rewards program, and not as an invitation to receive marketing texts. The text read:

“Thank you for joining Haagen-Dazs Rewards! Download our app here: [link].”

Haagen-Dazs argued the text was not an advertisement as it confirmed her enrollment in the rewards program, was sent after she orally provided prior express consent, and was not sent with an ATDS. In the alternative, Haaen-Dazs requested a stay pending the outcome of the ACA challenge to the FCC’s 2015 Omnibus rule seeking to clarify the definition of an ATDS.

The court found that since plaintiff had already been enrolled in the rewards program (i.e., the app was not necessary for enrollment), inclusion of the app link arguably made the text an advertisement, and that was sufficient to survive a motion to dismiss.

On the ATDS issue, the court felt discovery would be required to settle any factual disputes regarding the technology. The court denied a stay, finding that a delay would prejudice plaintiff, since it was “impossible to forecast when a final, binding decision in (the ACA challenge) will be rendered.”
[N.D. CA; 5:17-cv-03504]
jbho: Offering a link to a (free) app hardly seems like advertising, but you never know in TCPAland. A reminder to not overload informational messages with dubious content.

The court distinguished the texts here from other cases cited by Haagen-Dazs. It found in the other cases, the texts were part of an enrollment process, not sent after enrollment was completed. In Daniel v. Five Stars Loyalty (N.D. CA; 3:15-cv-00354) the texts read:

“Welcome to Five Stars, the rewards program of Flame Broiler. Reply with your email to finish registering and get free pts! Txt STOP to unsubscribe.”

and in Aderhold v. Car2go (W.D. WA; 2:13-cv-00489), the texts read:

“Please enter your car2go activation code 145858 into the emailed link. We look forward to welcoming you to car2go.”

The informational nature of texts lied in the fact they informed users of actions to ‘finish registering.’ Had downloading and installing the Haagen-Dazs app been a necessary step in the registration process, the court may have reached a different conclusion?

August 2017

Another Court Rules Live Vox HCI Not An ATDS

Arora v. Transworld Systems
Defendant’s MSJ Granted – Transworld allegedly made autodialed debt collection calls to plaintiff’s mobile about another person’s debt.

The court found that the system used by Transworld – the Live Vox Human Call Initiator (HCI) – did not constitute an ATDS due to “one key factor that separates it from autodialers: it requires human intervention.” Without human intervention, the HCI system lacked any ‘capacity’ to autodial, thus was not an ATDS.

The court rejected plaintiff’s supposition that the system could be modified to become an ATDS, finding that HCI had no predictive dialing capability, and the various components were sufficiently distinct such that the HCI could not store – or be modified to store – numbers.
[N.D. Ill; 1:15-CV-04941]
jbho: So we now a ruling in the 7th that joins district courts in the 6th (Smith v. Stellar Recovery: E.D. MI; 2:15-cv-11717) and 11th (Pozo v. Stellar Recovery: M.D. FL; 8:15-cv-00929) stating the Live VOX HCI is not an autodailer. The court relied heavily in the analysis in those cases in arriving at its decision here.

Can’t Require Payment As A Condition Of Opting-Out

Schweitzer v. Comenity Bank
Reversed and remanded – Comenity allegedly made autodialed and prerecorded debt collection calls to plaintiffs mobile, as many as eight (8) calls per day. Plaintiff claimed she asked Comentity to stop calling “in the morning and during the work day.” Comenity allegedly responded:

“It’s a call system. When it’s reporting two payments past due it’s a computer that dials. We can’t stop the phone calls like that. … What will stop it is do you know when you will be able to pay the thirty-five dollars?“

Afterward, Comenity allegedly made another 200+ calls, again as many as eight (8) calls per day.

The district court found that plaintiff’s request was not specific enough for Comenity to effectively revoke consent. “(S)he is asking not to be called at inconvenient times, without specifying what those times are.”

The appellate court found the concept of limited consent was enshrined in common law and federal law. Thus an initially unlimited consent could be partially revoked (“the greater power normally includes the lesser“). The appellate court disagreed that “logistical and technical challenges” meant a creditor did not have to honor a partial revocation (“Comenity’s own representatives recognized it is technologically feasible“). A creditor could decide to just revoke consent fully it was impractical to accommodate partial requests.

The appellate court also ruled that determining whether plaintiff’s request was specific enough to honor a partial revocation was a question for a jury. “(A) reasonable jury could conclude that Ms. Schweitzer did not want automated calls in the several hours between the time one wakes up and goes to school or work (say the couple of hours from 6:00 or 7:00 a.m. to 8:00 or 9:00 a.m.), or during a typical work day (say the eight hours from 8:00 or 9:00 a.m. to 4:00 or 5:00 p.m.)”
[11th Circ.; 16-10498 (Orig: S.D. FL; 9:15-cv-80665)]
jbho: another reason to build systems and preference centers to allow consumers to choose the times they would like to be contacted (e.g., allow users to Opt-Up or Opt-Down) rather than just implementing an all-or-nothing nuclear option.

And a reminder to educate your call center agents so they know TCPA requirements as well, and not tell people the only way to stop calls is to “pay up.”

In response to the above three-judge panel ruling, Comenity has requested a rehearing en banc.

July 2017

Robocall Class Certified During Mediation, Insurer Claims No Coverage

Allard v. SCI Direct (d/b/a Neptune Society)
Class certified – pre-need cremation service provider SCI, through its agent Call Fire, allegedly made unsolicited autodialed and prerecorded telemarketing calls to plaintiff’s mobile. Calls allegedly continued despite requests calls cease, filing a complaint with the BBB, and a written acknowledgement from SCI it would stop calling. Plaintiff further alleged SCI failed to keep a written Do Not Call policy, and failed to train its employees to honor Do Not Call requests.

At trial, it was revealed that SCI obtained plaintiff’s contact details when she sent in a mailer card asking about SCI services. She later informed SCI on an inbound call to her that she decided not to use SCI services, but did not explicitly ask to be opted-out on that call. Plaintiff did not answer future calls, but left voicemails asking SCI to cease. SCI sent an email telling plaintiff she had been placed on its internal Do Not Contact list, and plaintiff replied to the email reiterating she did not want to be contacted by SCI. After SCI called again, plaintiff filed a complaint with the BBB. SCI apologized and promised to remover her contact details from its databases. SCI called again, and plaintiff updated her BBB complaint and filed a complaint with the FTC.

On SCI’s motion for summary judgement (Doc# 59), the court found:

• SCI was sufficiently involved as to plausibly be the maker/initiator of the calls
  • “CallFire allows its customers to create the content of the messages, decide the telephone numbers to contact, and select when to send the messages“
• The calls were telemarketing
  • SCI’s witness confirmed, “[a]ll calls made by the sales team to leads had the ultimate goal of making a sale of Neptune Society’s services.”
• Since the calls were telemarketing, SCI needed – but did not have – Prior Express Written Consent
  • SCI admitted its mailer cards did not contain disclosures regarding autodialed or prerecorded calls, nor did any other solicitation materials disclose the use of autodialed or prerecorded calls.
• Since the calls were telemarketing, SCI needed to have – but could not show – written DNC policies and training
  • SCI admitted it had no policy at the time the lawsuit was filed
  • SCI introduced conflicting testimony as to whether it had any training in place

As a result of the above, SCI’s MSJ was denied. A class was later certified (Doc #61).
[M.D. TN; 3:16-cv-01033]
jbho: an interesting way to double-dip for violations of 47 USC §227(c). Plaintiff did not claim here number was on the National DNC List, but rather pursued procedural violations of 47 CFR §64.1200(c) & (d).

In a letter dated July 12, 2017 (Doc #60), parties agreed to mediation, with a status report due by 14 Aug 2017. According to a suit filed by SCI’s insurer RSUI, plaintiff is seeking an $85 million settlement.

And this is where it gets really interesting. In RSUI Indemnity v. SCI Direct (M.D. TN; 3:17-cv-01094), RSUI is seeking a ruling that it has no duty to defend SCI for its TCPA violations.

• RSUI argues SCI’s Bodily Injury and Property Damage coverage explicitly excludes ‘bodily injury’ or ‘property damage’:
  • expected or intended from the standpoint of the insured
  • arising directly or indirectly out of any action or omission that violates or is alleged to violate the TCPA, or any comparable federal, state or local statute, ordinance or regulation that prohibits or limits communicating or distribution of material
• RSUI further argues SCI’s Personal and Advertising Injury coverage explicitly excludes ‘personal and advertising injury’:
  • caused by or at the direction of the insured
  • arising directly or indirectly out of any action or omission that violates or is alleged to violate the TCPA, or any comparable
• Finally, RSUI argues SCI’s Media Liability Endorsement defines ‘damages’ to exclude fines and penalties, including governmental or criminal fines or penalties, or any ‘claim expense’ resulting there from.

Thus RSUI argues, based on the allegations in the underlying lawsuit, SCI’s TCPA violations were expected or intended, caused by SCI’s own actions or omissions, by or at the direction of SCI, and any resultant liability for TCPA claims are not ‘damages’ for the purposes of coverage.

Can’t Sue Company Just Because Its Product Was Advertised In An Unsolicited FAX

Health One Medical Center v. Mohawk
Dismissed – Plaintiff claimed it received unsolicited faxes promoting Pfizer and Bristol-Myers Squibb (BMS) products. The faxes were sent by Mohawk Medical, who was identified on faxes as the sender (each fax included Mohawk’s name, address, website, and email). Both Pfizer and BMS claimed they had no relationship with Mohawk, and had no knowledge of the faxes. Default judgement was entered against Mohawk when it failed to appear at trial.

Plaintiff argued Pfizer and BMS were liable for the faxes since their products were advertised in the faxes. Per the TCPA (47 CFR 64.1200(f)(10)) “sender … means the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement” (emphsis added). The court declined to accept this interpretation, and held there must be some relationship between the parties for BMS to be the ‘sender’ (“a literal interpretation of the regulation would lead to absurd and unintended results by vastly expanding the scope of liability” citation omitted). Since plaintiff failed to sufficiently allege any relationship existed between Mohawk and Pfizer/BMS, TCPA claims failed.
[E.D. MI; 5:16-cv-13815]
jbho: another example of bad grammar creating unnecessary legal liability. Takes more than a comma to fix this one. 

May I propose the following edits:
“sender … means the person or entity on whose behalf:
(i) a facsimile unsolicited advertisement is sent, or
(ii) whose goods or services are advertised or promoted in the unsolicited advertisement.”

Happy to send you my resume Chairman Pai…

One Call Is Concrete Injury

Susinno v. Work Out World
Reversed and remanded (precedential opinion) – Work Out World (WOW) allegedly made an unsolicited prerecorded message call to plaintiff’s mobile. Plaintiff claimed she never consented to the call, and even if there was a presumption of consent, it was revoked when she cancelled her gym membership. The district court dismissed, ruling that a single call caused no harm (not the type of harm congress sought to prevent).

In a precedential opinion, the appellate court found plaintiff had standing, since her injury was concrete. Congress clearly identified the injury, and the TCPA elevated an intrusion upon seclusion ‘invasion of privacy’ claim such that a single call was “the very harm that Congress sought to prevent.”

In finding plaintiff had alleged concrete, albeit intangible, harms under Spokeo, the court stated it need not address arguments related to tangible injuries.
[3rd. Circ 16-3277(Orig: D N.J.; 3-15-cv-05881)]
jbho: Another circuit moving towards the position that TCPA violations are automatically a concrete harm.

I’ve always advised, that if someone closes an account, you should consider that person opted-out.

Also interesting is that WOW tried to argue that the TCPA only applied to calls to mobile where the recipient is charged. I’ve not seen anyone have success with that argument.

June 2017

$25 Debt Turns Into (at least) A $34,500 Award For Plaintiff

Daubert v. NRA
TCPA claims affirmed, FDCPA claims reversed – NRA allegedly made 69 autodialed collection calls to plaintiff’s mobile without consent. Calls were allegedly made to collect on a debt of $25, incurred at a radiology center affiliated with a hospital.

ATDS
The district court ruled the Mercury dialer used by NRA was an ATDS. Initial testimony from an NRA expert indicated a human was not involved in the dialing, and the first human engagement was when a call was answered. If the phone was never answered, no human would be involved in the call. NRA later introduced an expert that stated human intervention was required, and the “F4” key must be pressed to initiate a call. The district court rejected that latter testimony under the sham-affidavit doctrine.

The appellate court affirmed, finding NRA had failed to provide a satisfactory explanation for the discrepancy in the testimony of its two experts. NRA made no effort to supplement the record with dialer specifications, or to explain the why its initial expert was (later) unqualified. Although the initial expert stated others might know more about the technology, NRA failed to demonstrate the initial expert was “understandably mistaken, confused, or not in possession of all the facts.”

Therefore, an ATDS was used and prior express consent was required to make the calls.

Prior Express Consent
Despite the fact plaintiff answered only one call, the district court granted plaintiff’s motion for summary judgment on TCPA claims. The court found the burden of proof of consent fell on NRA – a burden NRA was unable to meet (“there is no evidence anywhere in the record here showing that Plaintiff provided express consent to Radiology Associates or Wilkes-Barre General Hospital, or any other entity for that matter“).

The appellate court agreed, finding the NRA needed to produce more than a ‘metaphysical doubt’ that consent may have existed. In the absence of evidence of consent, the district court correctly held no reasonable jury could find plaintiff consented to the calls.

Therefore, the $34,500 award on TCPA claims was affirmed.

FDCPA
The district court found that a barcode containing plaintiff’s account number visible through a glassine window of an envelope did violate the FDCPA, even in the absence of a bare account number. However, the court held the violation was an unintentional, bona fide error, as NRA relied on (evolving) case law that appeared to indicate barcodes alone were not covered under the FDCPA.

The appellate court disagreed, finding that since case law on the barcode issue was unresolved, the bona fide error defense did not apply. The bona fide defense applied to clerical or factual mistakes, but not violations resulting from a mistaken interpretation of legal requirements. Since whether barcodes violated the FDCPA was unsettled by any relevant binding authority, NRA’s inclusion of barcodes – based on “NRA’s (assumedly) mistaken interpretation of the law” – did not qualify for the bona fide defense.

FDCPA claims were reversed, remanded with instructions to enter judgement in plaintiffs favor and determine appropriate damages.
[3rd Circ.; 16-3613 & 16-3629 (Orig: M.D. PA; 3:15-cv-00718)]
jbho: another case that demonstrates the importance of good records of consent.

On the barcode issue, since anyone can download an app to scan a read a barcode, it’s probably best to treat that as personal information, whether FDCPA or other privacy/consumer protection law.

The reversal of the FDCPA claims could cost NRA another $1,000 in statutory damages plus attorney’s fees. Based on the recent ruling on attorney’s fees in Heling v. Creditors Collection Service (E.D. WI; 2:15-cv-01274), the overall award could potentially double.

Note also that the Mercury dialer was previously ruled an ATDS in the Pennsylvania Middle District (Manuel v. NRA Group – M.D. PA; 1:15-CV-00274) where the court found pressing F4 merely signaled an agent was available to be transferred to a preexisting live connection. That the Mercury Predictive Dialer would automatically terminate calls when reaching an answering machine further illustrated the lack of human involvement in the dialing process.

FYI: The ‘sham-affidavit doctrine’ prevents a party from creating an issue of fact by producing an affidavit contradicting that party’s prior testimony. In the context of summary judgment, it prevents a party opposing (or supporting) a motion with facts that contradict a party’s witness’s deposition testimony.

Contract = Consent; Individualized Consent Inquiries Predominate

Katz v. Honda
Class certification denied – Honda, through its agents, allegedly made unsolicited autodialed telemarketing ‘survey’ calls to plaintiff’s mobile. Plaintiff claimed he provided his number only for service purposes, and not for Acura Client Excellence survey telemarketing calls.

On motion for class certification, the court found evidence that some putative class members did consent to calls. Thus, plaintiff’s claims were not typical of the class, and his interests were not aligned with the class (i.e., typicality and adequacy not met).

The court further found that for the approximately 225,138 customers, different lease agreements with different language were used to obtain consent. Since some of the agreements obtained valid consent, no class-wide proof of consent (or lack thereof) was established, and individualized consent issues predominated.(Doc # 150)
[C.D. CA; 2:15-cv-04410]
jbho: another interesting ruling on how to craft contractual consent. Although, unlike in Reyes v. Lincoln Auto (2nd Circ.; 12-2104), the question of revocation did not come up. Here the court ruled Honda’s 2015 lease agreement was clear and conspicuous, and represented an unambiguous written consent:

“COMMUNICATION WITH LESSOR: You verify that the phone numbers on page 1 are yours. You consent to receive emails, prerecorded messages and/or autodialed calls (including text messages) relating to this Lease, the Vehicle, your account, lease-end options and promotions. These communications may be made by Lessor, Assignee, AHFC or their agents or assignees, even if your phone number is registered on any state or federal Do No Call list. You may incur a charge for calls by your telephone carrier. Lessor, Assignee, or AHFC may obtain and contact email addresses and phone numbers provided by you directly or obtained through other lawful means … Your consent to this provision is not required to execute this Lease.”

The court ruled Honda’s 2014 agreement was not sufficient since it did not include language stating consent was not required as a condition of purchase.

Note the court previously denied Honda’s motion for summary judgement, finding the survey calls were likely telemarketing and required Prior Express Written Consent 

Health Care Exemption Doesn’t Include Insurance Sales

Sullivan v. All Web Leads
Motion to dismiss denied – All Web allegedly made unsolicited autodialed calls to Plaintiff’s mobile. Plaintiff claimed the calls were lead generation calls meant to solicit the purchase of health insurance. Calls were allegedly made after plaintiff entered his phone number on a site that mimicked the healthcare.gov website. Plaintiff claimed the site did not clearly and conspicuously disclose calls would be made, and consent to receive calls was a condition of using All Web services. Thus, plaintiff’s Prior Express Written Consent was not obtained. All Web argued the calls were ‘health care messages,’ thus only required prior express consent.

The court ruled the calls were not ‘health care messages’

• Messages were designed to promote a product, for the benefit of the caller
  • it was not enough the calls may be construed to benefit the consumer
• Calls were not made “by or on behalf of a health care provider” in the course of an “established health care treatment relationship”
  • calls were meant to create a new relationship between an individual and a health insurance issuer
• There was no nexus between the subject matter of the messages and “the established health care needs of its recipient”
• The 2015 Omnibus order FCC’s 2015 Order confirmed that insurance-coverage calls do not necessarily fall within the HIPAA definition of “health care.” (¶141 n.473)

Thus All Web needed Prior Express Written Consent to make the calls. And All Web had not shown it had effectively obtained that consent.

Since the consent issue was common to the proposed class – an issue to be addressed in discovery – dismissal of class claims was premature as well.
[N.D. Ill; 1:17-cv-01307]
jbho: another court helps clarify the definition of a “health care” message. Unlike Zani v. Rite Aid (S.D. N.Y.; 1:14-cv-09701), the calls here didn’t pass muster. More valuable dicta to help with the analysis.
https://jbho.blog/north-america/united-states/tcpa/#zani-v-rite-aid

If you’re interested, here are the components of All Web’s consent, as laid out in court documents:

The documents don’t clarify how far below the contact details section the disclosure appeared, but it appears the disclosure was not adjacent to the ‘submit’ button. In denying the motion to dismiss, the judge noted,

“(plaintiff) clicked the “Submit” button immediately below the end of the health insurance quote form without scrolling down further to the bottom of the webpage to read All Web’s Lilliputian consent language.”

A reminder that improperly placed disclosures can put contract formation at risk.

Claims Not Mooted By Deposit With The Court

Fulton Dental v. Bisco
Reversed and remanded – Bisco allegedly sent unsolicited faxes without the statutorily required opt-out notice. Plaintiff rejected a settlement offer (under Rule 68) of $3,005 for the one fax he received. Bisco tried again after the ruling in Gomez v. Campbell-Ewald making an immediate tender (under Rule 67), and the court granted a motion to deposit $3,600 to cover the maximum amount of damages allowed by the TCPA, plus $600 for incidental costs. The district court then ruled that offer mooted plaintiff’s individual and class claims.

The appellate court found no distinction between Rule 67 and Rule 68 in forcing a settlement on an unwilling party. Additionally, an award of damages (and injunction) were merits based rulings. Once the case was moot, the court lacked power to enter a judgement on the merits. Moreover, under Rule 67, defendant was only using the court as an escrow agent, and the funds could only be released to a party proven (via ruling) to be entitled to them. Finally, the fact Bisco indicated it might request return of funds ‘leftover,’ indicated a live controversy over whether the ‘full amount of relief’ had been deposited.

Thus, plaintiff’s claims were not mooted, and since plaintiff had not lost on the merits prior to a motion for class certification, class claims were not barred.
[7th. Circ.; 16-3574 (Orig: N.D. Ill.; 1:15-cv-11038)]
jbho: getting harder to ‘pick-off’ plaintiffs in the 7th.

The court kind-of alluded to the fact the offer did not address any potential service award to plaintiff as class representative. Not sure anyone would be willing to just tack on such an (unknowable?) amount in an offer. If they could, the court observed, that fully compensated plaintiff may no longer be adequate to represent the class.

Note that in the second, the appellate court overturned mootings based on Rule 68 offers in Lary v. Rexall (2nd Circ.; 15-601) and Geismann v. ZocDoc (2nd Circ.; 14-3708) as well.

$280M Penalty In Telemarketing Suit Brought By FTC, States

US v. Dish
Order for permanent injunction – Dish, and its agents, allegedly made tens of millions of unsolicited marketing Robocalls, many to numbers on the National and State specific Do Not Call lists. Dish also allegedly failed to honor opt-out requests. Liability for agent calls was established as Dish had sufficient influence over its agents based on the FCC Declaratory Ruling on Vicarious Liability (Dish’s own petition). The court found Dish failed to respond when it knew, or should have known, large volumes of calls continued to be made in violation of the TSR.

The decision requires Dish to pay:
• $168,000,000.00 to the FTC
• $53,256,000.00 to California
• $17,388,000.00 to Illinois
• $18,648,000.00 to North Carolina
• $22,708,000.00 to Ohio

Additionally, Dish must:
• Demonstrate that Dish and its Primary Retailers are fully complying with the TSR, otherwise it will be barred from conducting any outbound telemarketing for two years
• Hire a telemarketing compliance expert (e.g., PossibleNOW/CompliancePoint) to plan to ensure compliance
• Submit compliance materials, including all outbound telemarketing call records semi-annually; make itself available for impromptu inspections
The decision generally prohibits Dish, directly or indirectly through Authorized Telemarketers or Retailers, from violating the TSR.

UPDATE: 10Aug2017 – motion to clarify, alter and amend the judgment or in the alternative to amend the findings of fact and conclusions of law denied (Docs #820, #821). The court agreed to clarify some language in the injunction order, but declined to modify the other aspects of its ruling (including the $280 million judgment).

[C.D. Ill; 3:09-cv-03073]
jbho: this one has been well covered in the media, so not sure I have much to add. If you’re interested, one of the better analyses I’ve seen is on Law360 at:
https://www.law360.com/privacy/articles/933329/2-dish-network-defeats-suggest-tcpa-is-not-dead-yet (subscription required).

May 2017

$61 Million For Willful Violations – Jury Award Trebled By Judge

Krakauer v. Dish
Memorandum opinion and order – Dish, through its agents, allegedly made unsolicited telemarketing calls to plaintiff’s landline, a number on the national Do Not Call (DNC) list. Calls allegedly continued, despite plaintiff’s request to be added to Dish’s internal DNC list.

In February, a jury held Dish accountable for calls made by its agent, and awarded $400 for each of the ~51,000 calls in question.

The judge tripled the Jury Award, finding Dish willfully and knowingly violated the TCPA. The court determined Dish never investigated whether its vendors had solved compliance problems, despite a 2009 order where Dish agreed it would comply – and ensure its vendors complied – with the TCPA. Furthermore, the court found Dish’s agent knew it was using lists that had not been scrubbed, and knew it was calling people who asked calls cease. “Dish would turn a blind eye to any recordkeeping lapses and telemarketing violations (…) and any lawsuits (…) were (the agent’s) problem.” Even when made aware of violations, the court ruled, Dish took no disciplinary action.

In response to Dish’s argument it shouldn’t be liable since plaintiff only complained about the first call, the court stated “Nothing in the TCPA requires a consumer who receives violative calls to complain.”

To deter future violations, the court increased damages from $400 to $1,200 per call, bringing the total award to $61,342,800 ($1,200 * 51,119 calls).

UPDATE: 25July 2017 – defendant’s motion for post-trial procedures granted (Doc #351)

The court declined to issue a final judgement on the $61 million, finding an aggregate judgment in the full amount was inappropriate. Since the matter was not resolved by settlement, Dish had a right “to object and oppose any unfounded or incorrect claim.” The court ruled a claims administration process must be implemented that gives Dish a chance to challenge individual claims.

Handling of any unclaimed funds will be dealt with through the appropriate motions at the conclusion of the claims process.

UPDATE: 3Oct2017 – motion for judgement as a matter of law denied (Doc#370). The court found the claims here were not identical to the $280M FTC-State action, the treble damages were neither excessive nor duplicative, and Dr. Krakauer remained an appropriate class representative.
[M.D. NC; 1:14-cv-00333]
jbho: a few lessons here:
• Consent! Consent! Consent!
• When someone says stop calling, STOP CALLING!
• If you are going to work with vendors or list brokers, get representations and warranties that they have consent to use that data, and do your own due diligence to verify.
• Make sure you have well-constructed contractual agreements that clearly define vendor obligations, and distribute liability appropriately.

No Harm In A Couple Unsolicited Texts

Zemel v. CSC Holdings
Dismissed – CSC allegedly sent an unsolicited (ATDS) text to plaintiff’s mobile. Plaintiff claimed he was not a CSC customer, and never gave CSC his number. Plaintiff further alleged that when texting STOP, he received a non-confirmatory reply, asking him which texts he would like to stop.

The court found that plaintiff failed to allege a concrete harm:
• he had a monthly plan, and failed to show any additional charges for the texts
• text messages do not implicate the same privacy concerns as a telephone call
• time required to read the three texts could not have caused Plaintiff the annoyance Congress intended to prevent
• loss of some de-minims battery power was not the type of activity the TCPA intended to protect
Thus plaintiff failed to plead “any harm beyond a mere statutory violation” and case was dismissed (without prejudice).
[D. N.J.; 3:16-cv-04064]
jbho: Interesting result. I have a feeling this isn’t the last we’ll see of this case.

One of the few TCPA decision I’ve seen that ruled a TCPA violation isn’t in and of itself a concrete harm. Although, a common theme in those cases has been a single (or low number of) call(s) text(s) or fax(es). AFAIK, only the 9th has ruled on this. Could yet be a circuit split forming.

Remember, per the FCC’s SoundBite Declaratory Ruling, a final, one-time confirmatory opt-out text is permitted if:
• the sender of the text messages has obtained prior express consent, as otherwise required under the TCPA
• the opt-out confirmation does not include marketing solicitations, or an attempt to convince the consumer to reconsider the opt-out decision
• the opt-out confirmation is sent within minutes of the request
— (if more than five minutes, you have some ‘splaining to do)
• the confirmation is the only text messages sent
Note: the FCC also stated that while a one-time confirmation message after receipt of a consumer’s opt-out request does not violate the TCPA, such consent does not extend to a follow-up confirmation voice call.

Given the above, it’s probably safer to not run multiple text programs through the same short code.

Customer Satisfaction Surveys Require Prior Express Written Consent

Katz v. Honda
Defendant’s MSJ denied – Honda, through its agents, allegedly made unsolicited ATDS calls to plaintiff’s mobile. Plaintiff claimed the calls (part of an Acura Client Excellence program) were made after he provided his number during a service appointment. Plaintiff claimed he provided his number only for service purposes, and not for Acura Client Excellence ‘telemarketing’ calls.

ATDS
Honda argued that although a predictive dialer was used, the CellPhone Server integrated into the system did not have the capacity to progressively, sequentially, or randomly dial mobile numbers. Plaintiff countered that the two operated as single system capable of initiating automated calls, thus constituted an ATDS. The court determined these genuine issues of material fact made the matter unsuited for a ruling at the summary judgement stage.

Consent
The court ruled that although plaintiff provided his number, the calls were likely telemarketing (“made for customer service purposes and to increase future sales and revenue“), thus required Prior Express Written Consent. Honda had yet to demonstrate it obtained such consent.
[C.D. CA; 2:15-cv-04410]
jbho: a reminder that surveys can be considered marketing, and the determination of whether a call constitutes ‘telemarketing’ will be based on the perception of the recipient (and the courts) – not your intent – so don’t try to overload ‘informational’ calls with dubious content.

Note the court referenced Chesbro v. BestBuy in its decision making (loyalty program reminder robocalls were telemarketing).

Note also that the court simply and briefly noted that plaintiff automatically had standing under Van Patten v. Vertical Fitness.

Phone User (Non-Subscriber) Has Standing, Concrete Harm For Unanswered Calls

Tillman v. Ally
Defendant’s MSJ denied – Ally allegedly made autodialed and prerecorded debt collection calls to plaintiff’s mobile. Calls allegedly continued despite informing Ally it had reached a wrong number. Plaintiff claimed he installed a paid call-blocking app to avoid calls from Ally (although the app would still direct those calls to voicemail).

The court ruled plaintiff had statutory standing, even if we was not the “subscriber of the cell phone service” (i.e., the ‘called party’). The ‘called party’ determination was only relevant in determining if a call violated the TCPA, not who may bring suit. As the primary user of the phone, who received the calls in question, plaintiff fell “within the zone on interests protected by the TCPA.” That plaintiff shared his phone with his girlfriend was irrelevant, as he remained a person within the ‘zone of interest.’

Plaintiff had constitutional standing since even if he was away from his phone when an unwanted call was received, since he would still receive notification of a voicemail (didn’t have to be aware of the call when it occurred to be harmed). This intrusion upon seclusion was a concrete injury the TCPA intended to prevent. That plaintiff was not charged for the calls was irrelevant, as (1) economic injury was not required for Article III standing, and (2) the TCPA contemplated lack of actual damages, since it gives plaintiff the option of seeking actual or statutory damages.
[M.D. FL: 2:16-cv-00313]
jbho: so you have to have the consent of the person you’re calling, not just the owner of the phone. It would be interesting to see if consent of a subscriber would override an opt-out by the primary user, but that’s a story for another time…

Looks like the call blocking app played a role in the court’s decision. Not quite the automatic standing we’re seeing in the 9th, but furthers the proposition that you don’t have to answer a call to be harmed.

Affirmative Choices By App User Make Her – Not The App – The Sender

Reichman v. Poshmark
Defendant’s MSJ Granted – Poshmark allegedly sent an unsolicited (ATDS) marketing text to plaintiff’s mobile. Poshmark allegedly sent the text through a forward-to-a-friend feature in its mobile app that would ask users to share the app, and then execute an address book blast. Plaintiff alleged the texts were sent without informing app users texts would be sent, and without confirming whether the app user had the consent of potential text recipients.

The court found the app user actually caused the text to be sent. The process implemented by the Poshmark app required the user to:
• Grant the app permission to access a contact list
• Tap on a ‘Find People’ button
• Choose the ‘Find friends from your contacts’ option
• Select individual contacts or all contacts
• Click an ‘Invite’ button to send the invitations
This meant the user – not the app – made the call.

The court also found that in compiling an ‘invite’ list, the app displayed email addresses & phone numbers next to each name, indicating how the invitations would be sent. However, this was not relevant in determining who made the call.
[S.D. CA; 3:16-cv-02359]
jbho: Another case that indicates if you can introduce enough user interaction in the contact selection process, you may be safe moving forward with multiple invites per click. At least in the 9th. The court also referenced Cour v. Life360 (N.D. CA; 4:16-CV-00805) in making its determination (checking and unchecking boxes demonstrated the ‘affirmative choices by the app user’ called out by the FCC in its TextMe ruling). 

No Liability For Obfuscated Opt-Outs

Epps v. Earth Fare
Dismissed – Plaintiff enrolled in an Earth Fare text message program. Earth Fare allegedly continued to send text messages despite plaintiff’s attempts to opt-out. Her opt-out attempts included reply texts stating:
• “I would appreciate if we discontinue any further texts”
• “Thank you but I would like the text messages to stop can we make this happen”
• “I’m simply asking for texts to stop. I would appreciate that. Thanks”
• “As I requested earlier I asked that the text would stop, I would greatly appreciate it. Thank you”
In response to the above, Earth Fare would respond “Our system was unable to recognize the command: [text of received message]”

The court found that plaintiff failed to reasonably revoke her consent. Each text sent by Earth fare included STOP & HELP instructions (“Text STOP to end, HELP for help+ T&C’s“). Since plaintiff ignored these ‘clear instructions’ and willingly chose a more burdensome method to opt-out, her consent to receive texts remained valid.

Plaintiff has appealed the ruling (Doc#36).
[C.D. CA; 2:16-cv-08221]
jbho: reassuring to see that contrived opt-outs are insufficient to support TCPA claims. Although, if the system doesn’t recognize an inbound text, I’d suggest including STOP & HELP instructions in the ‘unrecognized’ response (as in Viggiano v. Kohl’s). 

Also interesting, in its motion to dismiss (Doc #24-2), Earth Fare included other complaints filed by plaintiff alleging similar opt-out ‘failures.’ As mentioned previously, I’m seeing more and more of this evolving tactic in TCPA litigation.

Finally, the court also stated plaintiff failed to allege an ATDS, finding that “voluntary release of a user’s phone number do(es) not support a plausible inference that an ATDS was used (citation omitted).” Little detail is provided in the dicta, but I’m not sure I see the connection between a voluntary opt-in and a manual dialing system. We may see more on this at appeal.

Claims Fail Since No Express Revocation Of Consent

Self-Forbes v. Advanced Call Center
Defendant’s MSJ granted – Advanced allegedly made autodialed debt-collection calls to plaintiff’s mobile without consent, and allegedly continued calling despite her request calls cease. Calls were made to collect a debt accrued on a Synchrony QVC credit card.

The court found that plaintiff had consented to the calls by providing her phone number on the QVC card application. Despite the lack of any declarations or testimony from Synchrony, there was no question of the genuineness of the application or agreement she signed.

The court further found that plaintiff’s allegations she asked calls cease were unsupported by call logs produced by Advanced. Of the 500+ calls made, none resulted in direct contact with plaintiff. Under Van Patten v. Vertical Fitness [9th Circ.; 14-55980 (orig: S.D. CA; 3:12-cv-01614)], “Revocation of consent must be clearly made and express a desire not to be called or texted.”  Since plaintiff failed to produce evidence of contact with Advanced, her consent to receive the (ATDS) calls was never revoked.
[D. NV; 2:16-CV-1088]
jbho: illustrates the importance of keeping accurate (and authentic) records of consent and any revocation of consent.

April 2017

TCPA Violations Automatic Concrete Harm

Brinker v. Normandin
Motion for reconsideration granted – Normadin, through its agents, allegedly made unsolicited, autodialed and prerecorded telemarketing calls to plaintiffs’ mobiles, some of which were registered on the national Do Not Call list.

The court initially dismissed the case, finding that due to the low number of calls, injuries were ‘too minimal’ to establish standing. On motion for reconsideration, the court referenced the 9th Circuit’s recent decision in Van Patten v. Vertical Fitness [9th Circ.; 14-55980 (orig: S.D. CA; 3:12-cv-01614)], where the court ruled any TCPA violation is a concrete, de facto injury (Van Pattern had standing for two ATDS texts). Based on this precedent, the court reversed itself, and reopened the case.
[N.D. CA; 5:14-cv-03007]
jbho: reinforcing the developing trend that TCPA violations are concrete harms by default (and Spokeo is a no go).

Also a reminder that plaintiffs can double-dip for violations of §227(b) & §227(c).

Flu Shot Reminders Are Health Care Message

Zani v. Rite Aid
Defendant’s MSJ granted – Rite Aid allegedly made an unsolicited, prerecorded message call ‘advertising’ flu shots to plaintiff’s mobile. Plaintiff claimed the prerecorded call did not contain an automated, interactive opt-out, and employees at his local Rite Aid location could not make the calls stop. The one call plaintiff received was made one year after he had a received a flu shot at Rite-Aid.

The court found that the calls ‘advertising’ flu shots where health care messages:
• The call concerned a health-related product/service (prescription medication administered at Rite Aid)
• Plaintiff had availed himself of the service the previous year (Rite Aid only called individuals it vaccinated the previous year)
• The call concerned an established medical need of the recipient (plaintiff’s advanced risk of influenza)

The court further found the call was made by a Covered Entity (or alternatively Rite Aid HQ made the call as a Business Associate of the location that administered the vaccination).

Thus the flu shot calls – as advertisements – qualified for the TCPA’s health care message exception, and required only prior express consent. Since plaintiff provided his number on a flu shot form (when receiving a flu shot the previous year), he consented to the call.

UPDATE: 21Feb2018 – affirmed (2nd Circ.; 17-1230 [S.D. N.Y.; 1:14-cv-09701]). Citing its recent decision in Latner v. Mount Sinai [2nd Circ.; 17-99 (Orig: S.D. N. Y.; 1:16-cv-00683)], the court affirmed the Rite Aid call was a “health care message” exempt from the written consent requirement of the TCPA – whether telemarketing or not. Plaintiff provided his prior express consent when he provided his mobile number to the Rite Aid pharmacy and signed the privacy notice consenting to receive such health care messages.

[S.D. N.Y.; 1:14-cv-09701]
jbho: so the courts are starting to clarify the definition of a “health care” message. The dicta does a nice job of breaking it down. A mess that could have been avoided if the FCC had offered some guidance back in 2012.

Also worth noting, the court did say plaintiff had standing (2nd circuit holds that TCPA violations result in concrete harm by their nature).

March 2017

Plaintiff Has Standing For Automated Text Responding To Online Classified Ad

Mohamed v. Off Lease Only
Order on standing – Off Lease Only, in concert with its partners and agents, allegedly sent unsolicited (ATDS) texts offering to buy plaintiff’s vehicle. Although he had listed a vehicle for sale on Craigslist, plaintiff claimed his ad stated: “do NOT contact me with unsolicited services or offers,” “Please don’t text me,” and “please be serious before calling.”

The text read:

“We are cash buyers for local vehicles. Get a cash offer 24/7 – http://bit.ly/p9z972L – Off Lease Only Miami“

Plaintiff alleged Defendant’s acquired his number by scraping Craigslist to obtain numbers for lead gen purposes. Others allegedly received similar unsolicited texts.

The court found that harms were clearly particularized, as plaintiff was affected in a “personal and individual way.” It further found that harms were concrete since a violation of the “substantive privacy rights” the TCPA protected were far from a bare procedural violation. Plaintiff need not (and did not) plead tangible harms of temporary, unwanted occupations of an individual’s time and electronic device. Citing Justice Thomas’s concurrence in Spokeo, the court found interfering with an individual’s (statutorily created) right meets the injury-in-fact requirement.

The court also found Plaintiff did not expressly consent to the texts, since his ad stated his desire not to be contacted by text.
[S.D. FL; 1:15-cv-23352]
jbho: another indicator that TCPA violations are concretes harms by default.

Interesting case. It would seem the offer to buy a car was related to the purpose for which the number was ‘provided’ on Craigslist. However, the court referred to the text as an ‘advertisement,’ and noted plaintiff stated no texts in his ad.

I have to say, the complaint contains one of the most colorful opt-out attempts I’ve seen so far. And it appears it was recognized.

Another phrase you should consider adding to your STOP keywords.

UPDATE: 25May2018 – MSJs denied (Doc#327). On defendant’s MSJ, the court found issues of vicarious liability and agency were fact intensive inquiries best left to a jury. On plaintiff’s MSJ, the court ruled a jury would need to determine whether (i) defendant’s system was an ATDS, and (ii) whether the calls/texts constituted advertisements. HOWEVER, the court did rule plaintiff’s ad did sufficiently revoke consent (should the jury rule the calls/texts were ATDS ads).

Consent To Call On Current Loan Extends To Previous Loan

Stauffer v. Navient Solutions
Defendant’s MSJ granted – Navinet allegedly made autodialed, prerecorded debt collection calls to plaintiff’s mobile, as often as 4-5 times per day and on weekends. Plaintiff claimed she did not provide her number to Navinet and never consented to the calls. Calls allegedly continued despite requesting they stop.

Proceedings revealed plaintiff had provided three separate phone numbers over the course of 4 years:
• 5039 number – in 2010 for an initial student loan
• 1687 number – in 2012 when executing an unemployment deferment
• 3005 number – in 2014 for a student loan at a separate school
Plaintiff signed agreements providing consent to be contacted in each of the above cases.

Navient had serviced both student loans since May 2013. It claimed it stored numbers at an account, and not a loan, level. Navinet called the 3005 number about the 2010 loan 81 times, and ceased calling when plaintiff informed Navinet a wrong number had been reached (plaintiff subsequently conceded she never revoked consent at the 3005 number).

Plaintiff argued that Navinet had no consent to call the 3005 number about the 2010 loan, as it had not been provided ‘during the transaction that resulted in the debt owed.’ The court disagreed, and found that the number was provided in the context of a business relationship, since both loans were serviced on the same account by the same creditor. Thus Navinet had prior express to call the 3005 number as it was provided in the course of their ‘normal business relationship.’
[M.D. PA; 1:15-cv-01542]
jbho: interesting result, as this ruling reinforces the opinion that consent attaches to any number provided over the course of a relationship – not just the one provided on the agreement. Per the court, “the ruling affirms the unremarkable principle that a creditor may call a debtor at a wireless number provided by the debtor in the course of their business relationship.”

Debt Collector’s System Might Be An ATDS After All

Flores v. Adir International
Reversed and remanded – Adir allegedly sent unsolicited (ATDS) text messages regarding a confidential matter. Plaintiff stated the initial text read:

“DEBE LLAMAR HOY MISMO A ADIR INTERNATIONAL, LLC AL 213-639-2090 O EMAIL diegov@icuracao.com PARA INFORMACION CONFIDENCIAL Ref # 83530918 Reply STOP to Cancel.”

After replying stop, plaintiff stated he ‘almost immediately’ received the following text:

“Curacao-Gracia! Usted no recibira mas alertas Curacao y sera eliminado de la lista. Para informacion envie un email Mercedesg@icuracao.com“

Plaintiff claimed he received the initial text at least three more times, and replied STOP each time. Plaintiff’s cell phone carrier charged him a fee for each incoming text message.

Plaintiff’s claimed an ATDS was used since (i) both the initial and opt-out confirmation texts did not identify the recipient, (ii) both texts were ‘scripted and generic,’ and (iii) the opt-out confirmation texts came ‘almost immediately.’

The district court ruled these were insufficient to allege use of an ATDS, since plaintiff conceded that defendant was specifically targeting him about a specific debt, and not the recipient of of a mass marketing blast (the targeting being inconsistent with random or sequential number generation). Additionally, each text contained the same reference number. Moreover, while an immediate response may indicate some form of automation, automation alone was not enough to satisfy the definition of an ATDS. The court conceded it was possible an ATDS was used, however, plaintiff must allege contextual facts to take his allegation “across the line from conceivable to plausible.” Thus plaintiff’s claims were dismissed.

The appellate court (in an unpublished, non-precedential opinion) determined it was reasonable to assume the system possessed the requisite capacity to store or produce numbers, even if that capacity was not used. Since the lower court focused only on dialing, it failed to “construe the pleadings in the light most favorable to the non-moving party” and thus reversed the decision and remanded the case.
[9th Circ.; 15-56260 (Orig: C.D. CA; 2:15-cv-00076)]
jbho: The capacity question rears its head again. Although the appellate court stopped short of calling the system an ATDS, it did say, “drawing on the court’s judicial experience and common sense, it is reasonable to infer that the equipment used has the capacity to ‘store or produce telephone numbers to be called, using a random or sequential number generator,’ even if it was not presently being used for that purpose” (emphasis added, internal citations omitted). So a broader definition of ATDS appears to prevail in the 9th.

Also interesting, this is the first debt collection text message case I’ve seen. Let me know if you’ve seen others.

TCPA Claims Survive, UCL Claims Not Quantified

Holt v. Facebook
Dismissed in part (leave to amend) – Facebook allegedly sent unsolicited (ATDS) texts to plaintiffs mobile. Plaintiff claimed she was not a Facebook user, and never provided her (reassigned) number to Facebook. The texts allegedly asked her to post status updates to her account, and did not include opt-out instructions. Sample texts in the complaint read:

“What are you up to? Reply with a status update to post to Facebook or go to “

“Your friends have posted [x] updates this week. Reply to post your own status on Facebook or go to “

Texts allegedly continued despite STOP replies.

The court found plaintiff plausibly alleged use of an ATDS, since the texts contained generic elements, and the same messages were received by many individuals. Additionally, there was no evidence any third party or Facebook employee was involved in sending the messages.

The court denied Facebook’s constitutionality challenge based on the same logic in Brickman.

Claims under California’s Unfair Competition Law (UCL) were dismissed, as plaintiff failed to quantify damages resulting from “diminishment”. The court did however grant leave to amend on those claims.
[N.D. CA; 3:16-cv-02266]
jbho: best to honor STOP requests, and not make people login to opt-out of text messages. Here plaintiff couldn’t opt-out since she couldn’t change the message settings of a Facebook account that did not belong to her.

The court did mention Duguid, where ATDS claims were dismissed (login notification texts triggered by a human act directly related to the specific user’s account), and Brickman, where ATDS claims survived (birthday announcement texts where not shown a person ordered a specific message). The court felt the texts here fell in with the latter, stating (in addition to the above) the variable number in certain texts could have easily been a system threshold, and not necessarily an indication of human intervention.

However, the court seemed to go off track by stating the lack of a pre-existing relationship with Facebook was not suggestive of human intervention. This seems to me more like a consent argument, since a human can dial a wrong number same as a machine, n’est-ce pas? Also troubling, the court found it relevant that the texts were sent from a short code (“short codes often indicate use of an ATDS”). I guess the court wanted to wait until discovery to sort that out. “Because text message recipients have no way to deduce the specific type of dialing system a sender uses without discovery, courts allow TCPA claims to proceed beyond the pleading stage where plaintiff’s indirect allegations about the messages “raise an inference that an [ATDS] was utilized” (citing Duguid).”

Deposited Check Doesn’t Moot Class Claims

McCombs v. Cayan
Motions to dismiss denied – Wells Fargo, through its agent Cayan (d/b/a Capital Bankcard), allegedly sent an unsolicited (4 page) fax, that failed to include a proper opt-out notice. Plaintiff claimed she had no prior relationship with Cayan or Wells Fargo, and did not request any of their services.

Plaintiff moved to certify a class 9 days after filing her original complaint. On the same day, defendants served an offer of $7,500 (to cover the fax and costs incurred) – an offer which plaintiff rejected. Nine days after that, the Supreme Court issued its ruling in Campbell-Ewald v. Gomez. Defendants then repeated the offer and included a check for $7,500. Plaintiff again rejected the offer and returned the voided check. The Court later denied defendants’ motion to deposit funds with the Clerk of Court. It did however permitted them to deposit a $7,500 check with a trusted intermediary.

On defendants’ motion to dismiss, the court found:

• Plaintiff had standing, as a violation of the TCPA gives rise to a concrete injury
• Deposit of the check did not moot, since:
  • plaintiff made her intention to pursue class certification clear
  • the court had not entered judgment for the defendant
  • tenders may not be used to “undermine the purposes of the class action device“
• Defendants were promptly and adequately put on notice of the proposed class
  • although the initial complaint only generally referred to ‘class members’ and ‘the class,’ the class was defined shortly after in plainitff’s motion for class certification
  • seeking certification is the normal practice in TCPA cases

The court also found that the fax here named Wells Fargo first, advertised a Wells Fargo Service, contained a contract to which Wells Fargo was a signatory, and indicated Cayan represented Wells Fargo. Wells Fargo’s actual role, as well as claims of potential “sabotage liability” were issues for discovery and summary judgment.

UPDATE: 11April2017 – plaintiff accepted an offer of class wide injunctive relief, and a cash award of $7,500 (Doc#133).
[N.D. Ill; 1:15-cv-10843]
jbho: a fax case, but again instructive for procedural reasons. Still very difficult to pick-off plaintiffs in the seventh.

Additionally, the court rejected the contention that the cover sheet statement claiming “we called your office earlier” constituted proof of consent.
Also if you are tracking alleged non-compliant opt-out notices, here the text stated:

To be removed from our offer to LOWER your merchant cost, write REMOVE at the top and fax this back to (888) 519-4214 (emphasis in original)

And finally, a reminder the TCPA does apply to B2B marketing.

February 2017

$20M Jury Award For DNC Violations

Krakauer v. Dish
Dish, through its agents, allegedly made unsolicited telemarketing calls to plaintiff’s landline, a number on the national Do Not Call (DNC) list. Calls allegedly continued, despite plaintiff’s request to be added to Dish’s internal DNC list.

The jury held Dish accountable for calls made by its agent, and awarded $400 for each of the ~51,000 calls in question.

Notices have been approved, and any post-trial issues must be filed by 31 March 2017 (Doc # 314).

UPDATE: 9Mar2017 – Dish has filed a motion for new trial (Doc #320) citing “numerous prejudicial errors at trial (and) implor(ing) the jury to punish Dish for … conduct in 2004-2005, as opposed to the conduct at issue in the case.”

UPDATE: 6May2017 – the court denied Dish’s motion for a new trial

[M.D. N.C.; case number 1:14-cv-00333]
jbho: I’ve not seen many TCPA cases go to trial, but this is the first I’ve seen that included DNC violations (47 USC §227(c)).

Does Consent Extend To Affiliates?

Hoover v. Sears
Motion to dismiss denied – Sears, through its agent Vibes, allegedly sent some 68 unsolicited marketing (ATDS) texts to plaintiffs mobile. Plaintiff claimed he was not a Sears customer and never enrolled in the “Sears Alert Program.” Sears argued plaintiff consented to the texts through a double opt-in. Plaintiff replied he had previously enrolled in a K-Mart Shop Your Way (SYW) program, but that did not constitute consent to receive Sears texts (even though Sears owns K-Mart).

The court found plaintiff sufficiently alleged TCPA violations, which constituted an injury-in-fact. Additionally, as with other TCPA actions, the individualized nature of consent was better suited to be addressed at the class certification stage. Finally, with respect to ACA’s active challenge to the 2015 Omnibus Rulemaking, the court found a decision in the DC Circuit would not be binding in New Jersey, and the court was not convinced the issue at hand would be address there at all.

UPDATE: 27Apr2017 – Arbitration Compelled (Doc #43). The court found that plaintiff had agreed to the terms – that included the arbitration provisions – when he signed up for the KMart text program through a POS terminal.
https://jbho.blog/2017/06/18/pinpad-consent-creates-valid-contract/

[D. N.J.; 3:16-cv-04520]
jbho: I don’t believe the 2015 Omnibus order addresses that applicability of a consent – or revocation – across affiliates. The only mention I see is that the “one call safe harbor” applies across affiliates & subsidiaries (p.40 footnote 261). Although, I believe under DMA principles, affiliates are permitted to process opt-outs on a brand/division basis.

It appears the timing of the two programs is as follows:
• Plaintiff enrolled in K-Mart texts: 1Dec2014 – 11Sep2015
• Sears Texts Sent: 4Oct2015 – 26Jun2016
I haven’t seen anything that states how or if plaintiff ‘unenrolled’ from the K-mart program. Nor have I seen if the written consent for the K-Mart program specified whether Sears Holdings could send (additional) texts. Perhaps they will be produced during discovery. Let me know if you see anything.

Nonetheless, to err on the side of caution, I’d say you might want to:
• make it clear in your PEWC who will do the calling/texting (consent to receive calls/texts from [enumerated parties])
• specify the purpose(s) of the calls/texts (consent to receive calls/texts about [enumerated topics])
• If you’re running multiple programs, make sure the scope of a particular opt-out is clarified (e.g., STOP = “you’ve opted out of ‘program x'” STOPALL = ends all texts from shortcode/holding company)

You might also want to check out the DMA guidelines at https://thedma.org/wp-content/uploads/DMA_Guidelines_January_2014.pdf, and of course you should know the rules themselves: http://www.ecfr.gov/cgi-bin/text-idx?rgn=div6&node=47:3.0.1.1.11.12

 Another Court Rules Live Vox HCI Is Not An ATDS

Smith v. Stellar Recovery
Report and Recommendation – Stellar, on behalf of its client, allegedly made autodialed and debt collection calls to plaintiff’s mobile, for a debt that had been discharged in bankruptcy. On motions for summary judgement, magistrate found:

• The Right Party Connect (RPC) system was an ATDS (simply click play, and the LiveVox RPC predicatively dials all the numbers in a campaign)
  • Plainitff’s MSJ should be granted for any calls made through the RPC system
  • Questions of fact remained as to whether treble damages were warranted
• The Human Call Initiator (HCI) system is not an ATDS (clicker agents must accept and confirm each phone number in order to place a call)
  • Defendant’s MSJ should be granted for any calls made through the HCI system

[E.D. MI; 2:15-cv-11717]
jbho: if a human is doing the predicting, your system may not be an ATDS after all.

So now a court in the 6th has joined the 11th (Pozo v. Stellar Recovery: M.D. FL; 8:15-cv-oo929) in ruling HCI is not an autodialer. Interesting trend developing.

Revocation Of Consent Must Be ‘Express’

Van Patten v. Vertical Fitness
Affirmed – Vertical Fitness allegedly sent unsolicited text messages to plaintiff’s mobile. Plaintiff provided his mobile number on a Gold’s Gym application (operated by Vertical Fitness), but later cancelled the account. When the gym changed brands to Xperience Fitness (still owned by Vertical Fitness), inactive members – including plaintiff – received text messages inviting them to join the re-branded gym.

The appellate court found that although TCPA violations by their nature were sufficient to establish an injury in fact, plaintiff consented to the texts (about a gym membership) by knowingly providing his number on the initial gym application. A “come back” message fell within the scope of that consent. Since the texts in question occurred before 16 October 2013, prior express consent was sufficient.

In response to plaintiff’s argument his consent should have been revoked upon cancellation of his membership, the appellate court found that “(r)evocation of consent must be clearly made and express a desire not to be called or texted.” Since plaintive took no affirmative action to revoke his consent, it remained valid.
[9th Circ.; 14-55980 (orig: S.D. CA; 3:12-cv-01614)]
jbho: interesting is that the court read into the TCPA an ‘express revocation’ requirement. A bit dichotomous, don’t you think? If prior express consent can be inferred by conduct, couldn’t revocation? Another reason we need the new FCC to help clarify.

Also, the court focused on the fact that ownership and operation of the gym never changed. I wonder what would have happened if a contact list was transferred as an asset in a purchase.

Finally, despite the court’s opinion, I’d advise it’s safest to consider a closed accounts as opted-out. Vertical Fitness came away with a win here, but after almost five years of litigation, this can’t have been a cheap victory (initial complaint entered on 28Jun2012).

TCPA Harms Concrete, But Consent Revocation Individual Issue

Cholly v. Uptain Group
Motion to dismiss denied – Uptain, on behalf of its client Alere, allegedly made autodialed debt collection calls to plaintiff’s mobile. Calls allegedly continued despite plaintiff’s request they stop, and informing Uptain she was filing for Bankruptcy. Uptain allegedly told plaintiff she must provide a bankruptcy case number to stop the calls. Calls allegedly continued, even after informing Alere in writing of her bankruptcy petition, which listed the debt she owed Alere. Plaintiff also alleged it was Uptain’s policy to deny oral revocation requests.

The court found that TCPA violations are concrete injuries, and plaintiff adequately alleged such injuries. That plaintiff failed to list calls made prior to filing for bankruptcy as a an asset had no impact on the litigation process (bankruptcy trustee has abandoned interest in such claims), and no estoppel was warranted.

However, the court did strike class claims, as the individualized issues of consent revocation would predominate over common questions. Thus the case could only proceed on an individual basis.
[N.D. Ill.; 1:15-cv-05030]
jbho: when someone says stop calling, STOP CALLING!

Additionally, I’d argue it’s probably best to consider a bankruptcy petition as a sign the debtor is represented by an attorney. Remember that PNC is settling a case where the court ruled PNC should have known plaintiffs were represented by an attorney, since its debt was listed in bankruptcy proceedings (Bray v. PNC: M.D. FL; 6:15-cv-01705).

Note also that although the court here previously dismissed revocation claims based on the bankruptcy petition, plaintiff has maintained a Bankruptcy Stay Sub-Class for purposes of appeal.

The Importance Of List Scrubbing (And Due Diligence)

O’Shea v. American Solar
Class certified – American Solar allegedly made autodialed telemarketing calls to plaintiff’s mobile, on a weekly basis, and as many as three times a day. Plaintiff stated he never consented to the calls, and calls continued despite requests they stop calling.

The court found that Defendant used a ViciDial predictive dialer to make 897,534 calls to 220,007 phone numbers purchased from list brokers. Thus numerosity was satisfied, and common issues prevailed. As plaintiff suffered the same harms as the rest of the class, he was adequate representation.

On consent issues, the court rejected defendant’s contention it was entitled to a good faith defense based on the fact it believed it was dialing landlines only (relying on list brokers). Furthermore, individualized issues regarding consent would not prevail as defendant could not assume consent simply because it was dialing a landline. Finally, the court found that even if a called party ultimately made a purchase, that consent would be subsequent to the call, and not the prior express consent required by the TCPA.

Similarly, individualized damages did not present barriers to certification as outbound call lists would identify with precision each number dialed and how many times it was dialed. Damages calculations would then be a simple process of multiplication.
[S.D. CA; 3:14-cv-00894]
jbho: when someone says stop calling, STOP CALLING.

Yet another reminder of the importance of good data hygiene, and that dealing with list brokers can be a risky business. If you are going to work with list brokers, make sure the data is collected in a fair and lawful manner, get representations and warranties that you have consent to use that data, and do your own due diligence to verify. Additionally, make sure you have well-constructed contractual agreements to make sure vendor obligations are clearly defined, and liability is appropriately distributed.

UPDATE: 21May2018 – plaintiff’s MSJ denied (Doc#138). The court determined the facts were:
• Defendant used an ATDS to make the calls (ViciDial predictive dialer)
• Defendant had no evidence of consent
However, plaintiff’s contention that defendant made 897,534 calls to 220,007 different cell phone numbers must be reviewed by a jury, to determine the accuracy of the report produced by plaintiff’s expert.

Facebook System Not An ATDS?

Duguid v. Facebook
Dismissed with prejudice – Facebook allegedly send (ATDS) texts to plaintiff’s mobile alerting him of someone else’s account logins. Plaintiff claimed he did not have a Facebook account, and texts allegedly continued despite following instructions provided by Facebook to stop the texts (replying “off”). The district court previously ruled that plaintiff failed to sufficiently allege an ATDS had been used (“… does not suggest that Facebook sends text messages en masse to randomly or sequentially generated numbers”), and dismissed the action with leave to amend.

In response to the amended complaint, the court found that the alleged TCPA violations were sufficient to confer standing, plaintiff again failed to plausibly allege an ATDS had been used. That facebook used a computer system did not mean “capacity” was present or could be trivially added, and plaintiff failed to allege any equipment pairing that would have resulted in the capacity to store or produce numbers and dial those numbers at random, in sequential order, or from a database of numbers. The court determined further amendment “would be futile” and dismissed the amended complaint with prejudice.
[N.D. CA; 3:15-cv-00985]
jbho: impressive to get a favorable ATDS ruling at the motion to dismiss phase. The courts usually allow discovery before making a call on ATDS claims.

Interesting that two very similar cases in the same district reached different conclusions about the ATDS definition. It appears the nature of the texts played a roll in classifying the system.
• In Duguid (above) it seems the event based alerts implied there was no storage or dialing from a list.
• In Brinkman (below) it seems the queuing of the day’s birthday messages implied there was storage or dialing from a list (although the court said it was a ‘close call’).
I doubt Facebook is using two distinct systems for the different text types – so which one is it? Another argument for much needed TCPA reform.

Facebook System Is An ATDS?

Brickman v. Facebook
motion to dismiss denied – Facebook allegedly sent autodialed birthday notification texts to plaintiff’s mobile. The text read:

Today is [Facebook friend’s] birthday. Reply to post a wish on his Timeline or reply with 1 to post “Happy Birthday!”

Plaintiff claims he never selected ‘active text messaging’ in his Facebook ‘Notification Settings,’ nor did he ‘Activate Text Messaging’ in his ‘Mobile Settings.’ Plaintiff contends by choosing to not activate text messaging, he affirmatively had NOT consented to receive text messages of any kind.

Facebook moved to dismiss on the basis no ATDS was used, citing the ruling in Duguid v. Facebook where login notification texts were determined to have not been sent by and ATDS (N.D. CA; 15-cv-00985). The court felt there were differences between the login notification texts in Duguid and the birthday texts at issue here. The court ruled plaintiff sufficiently alleged an ATDS could have been used: the Facebook system compiled a list of phone numbers, stored them in a a queue, and dialed them sequentially from that queue. That a human at some point must enter a number did not necessarily mean the system was not an ATDS, since “a person will always be a but-for cause of any action’s machine, “human intervention” for purposes of the TCPA requires more than but-for causation.”

On Facebook’s constitutionality challenge, the court ruled the limited number of exceptions*, carefully balanced against the interests of consumers meant the TCPA was not underinclusive. And since callers were always able to make manual calls, the TCPA was not overinclusive. Moreover, the TCPA serves a compelling interest in protection residential privacy. The TCPA therefore withstood a “strict scrutiny” review.

UPDATE: 27Apr2017 – the court has granted a motion for appeal (Doc #99) to address:
1) the definition of an ATDS
2) whether the TCPA, as a government content-based regulation of speech, is constitutional (survives strict scrutiny)
If an appeal is denied, the case will be stayed pending the D.C. Circuit’s decision in ACA v. FCC (D.C. Circ.; 15-1211).
[N.D. CA; 3:16-cv-00751]
jbho: another constitutional challenge bites the dust. However, the court did indicate that the ATDS ruling was a ‘close call’, and reached primarily based on the fact that at the motion to dismiss phase, allegations must be viewed in a light most favorable to the non-moving party.

* The exceptions addressed were those specifcally in the TCPA:
• emergency calls (§227(b)(1)(A)); and
• debts owed the governement (§227(b)(1)(A)(iii))
Facebook did not contest exemptions created under §227(b)(2)(C).

FYI – if you haven’t memorized it yet, you can read the TCPA at https://www.law.cornell.edu/uscode/text/47/227

Blue Shield Escapes Class Action Over Single Call

Smith v. Blue Shield
Defendant’s MSJ granted – Blue Shield allegedly made a prerecorded call to plaintiff’s mobile reminding her to renew her insurance policy. Plaintiff claimed she did not consent to the call and the recording provided no automated, interactive opt-out mechanism or call back number (as required by 47 CFR § 64.1200(b)(2)&(3)).

The court found that since the prerecorded message was “virtually identical” to the statutorily required written notice of renewal (required under the ACA), the call was informational, and not telemarketing. Therefore, written consent, an automated, interactive opt-out mechanism, or call back number were not necessary – plaintiff consented to the call by knowingly providing her number on the initial Blue Shield enrollment forms.
[C.D. CA; 8:16-cv-00108]
jbho: interesting to note, is that the court did spend several pages stating plaintiff had standing since “TCPA violations necessarily cause harm to consumers” (p.10).

No Vacation From The TCPA

Glasser v. Hilton
Motion to dismiss denied – Hiltion allegedly made autodailed calls promoting vacation packages to plaintiff’s mobile without prior express written consent. Hilton argued plaintiff failed to allege a concrete injury, and that plaintiff consented to the calls when she signed up for the HHonors program.

The court found that invasion of privacy, depletion of battery, and being charged for incoming calls were sufficient to allege concrete injury – plaintiff didn’t have to allege she actually answered the calls. The court also ruled consent was a merits issue, and not relevant in determining standing or jurisdiction.

Finally, the court also fond that Hilton failed to show evidence it bound Plaintiff to an agreement with a valid forum selection clause, so the case would remain in the 11th (for now).
[M.D. FL; 8:16-cv-00952]
jbho: seems the Spokeo defense still has little influence over TCPA cases.

December 2016

Consent Not Individualized When A Purchased List

Bridging Communities v. Top Flite
Reversed and remanded – Top Flite, through its vendor B2B solutions, allegedly sent unsolicited faxes to some 4,000 numbers. Plaintiffs claimed they never consented to the faxes and there was no established business relationship (EBR) with Top Flite. The district court denied class certification ruling that class claims failed on predominance, as determining whether individual class members might have solicited or consented to the faxes would require investigation of the factual circumstances for each number that received a fax. Top Flite then made an offer of full relief on plaintiffs’ individual claims, which was rejected. The district court then dismissed the individual claims as moot.

The appellate court found that the District court erred in dismissing class claims, as
• The faxes were sent to a list obtained from a list broker,
• B2B did not contact anyone on the list to verify consent, and
• Top Flite merely argued class members might have given consent without providing evidence to support that supposition.
This possibility of defense was insufficient to defeat the predominance requirement, so the district court abused its discretion in denying class certification.

Additionally, the Supreme Court’s ruling in Campbell-Ewald stated that an unaccepted offer had no operative effect, and although the SCOTUS decision was reached while the current case was on appeal, the appellate court must apply the law in effect at the time it rendered its decision.
[6th Circ.; 15-1572 (orig: E.D. MI; 2:09-cv-14971)]
jbho: A reminder that dealing with list brokers can be a risky business. If you are going to work with list brokers, make sure the data is collected in a fair and lawful manner, and get representations and warranties that you have consent to use that data, and do your own due diligence to verify. Additionally, make sure you have well-constructed contractual agreements to make sure vendor obligations are clearly defined, and liability is appropriately distributed.

Also, a reminder to vet your vendors not only on performance matters, but on liquidity as well. The now bankrupt B2B Solutions has been the focus of many TCPA cases. For example, In City Select Auto Sales v. David Randall Associates, a $1,775 agreement with B2B lead to a $22M TCPA settlement (D. N.J.; 1:11-cv-02658). In American Copper & Brass v. Lake City Industrial Products, Lake City paid B2B $92 dollars to send some 10,000 unsolicited faxes, and ended up being on the hook for a $5.2M TCPA judgement – ultimately leading to the bankruptcy of Lake City Financial (W.D. MI; 1:09-CV-1162).

And finally, yet another reminder that the TCPA applies to faxes.

Depositing Funds Alone Does Not Moot Claims

Wendell H. Stone Co. v. Metal Partners Rebar
Motion to dismiss denied – Metal Partners allegedly sent unsolicited faxes that failed to include the statutorily required opt-out notice. In response to plaintiff’s class complaint, Metal Partners filed a motion to deposit funds and entry of judgement. Plaintiffs subsequently filed a ‘placeholder’ motion for class certification.

The court found that defendant could not create a jurisdictional bar to plaintiff’s claims by imposing a judgment on plaintiff through a motion to deposit funds. The court went on to say an actual deposit of the full amount owed to the plaintiff could not render individual claims moot. Even if accepted by plaintiff, that only provided defendant with affirmative defense rather than a jurisdictional bar.

Similarly, as individual claims could not be mooted, class claims remained active as well (plaintiff had not been given the opportunity to pursue discovery thus had not received a fair opportunity to pursue class certification). Moreover, plaintiff moved for class certification before the Court granted Metal Partners permission to deposit funds and before any entry of judgment.

Finally (almost as an afterthought), the court indicated the number of faxes sent to plaintiff had yet to be determined; another reason an entry of judgment could not be made, as the amount offered by Metal Partners may not constitute full relief.
[N.D. Ill; 1:16-cv-08285]
jbho: another fax case, but I again found interesting for the procedural elements. Here the court indicated that “even if the district court were to enter judgment on the plaintiff’s individual claims before class certification, the plaintiff would still be entitled to seek class certification,” quoting the 9th Circuit decision in Chen v. Allstate (13-16816). Continuing by referencing the 3rd Circuit opinion in Richardson v. Bledsoe (15-2876), the court went on to say “The message from these courts is clear: plaintiffs pursuing class claims will not find those claims undermined by the defendant’s attempt to pick them off.” Another indication that SCOTUS’s on-the-fence-ruling in Campbell-Ewald did little to resolve the circuit splits.

November 2016

Text Reminder to Finish Web Order Not Telemarketing

Wick v. Twilio
Dismissed – Twilio allegedly sent an unsolicited text message to plaintiff who had abandoned an internet order. Plaintiff provided his number – a number on the national do not call list – on a webform to order a ‘free’ product, but then changed his mind before completing the order. The text read:

“Noah, Your order at Crevalor is incomplete and about to expire. Complete your order by visiting http://hlth.co/xDoXEZ.”

In addition to the text, plaintiff ‘simultaneously’ received a telephone call encouraging him to complete the order.

Plaintiff claimed he did not expect, nor had he consented to, either the text or the call, the purpose of which were to promote, market, advertise, or encourage the current or future sale of Crevalor products (requiring Prior Express Written Consent).

The court found the purpose of the communications were simply to remind plaintiff to complete his order so he could receive his free product. These ‘customer service’ contacts did not constitute telemarketing. As plaintiff knowingly provided his number on the order form, he provided his prior express consent to receive the reminder text and call. CEMA claims also failed, as the text was not ‘commercial.’

UPDATE: 12July2017 – in response to plaintiff’s second amended complaint, the court found:
1) Twilio equipment was plausibly an ATDS (“Twilio’s system has the potential ability to automatically send a pre-recorded message to thousands of numbers in a short period of time. That is the classic description of an autodialer.”)
2) Twilio plausibly initiated the texts (“Twilio fails to acknowledge, much less address, many of plaintiff’s allegations.”)
3) Plaintiff consented to the text by knowingly providing his number (“the text message he received was aimed at completing a commercial transaction that he had initiated … (t)hus … does not constitute telemarketing.”)

[W.D. WA; 2:16-cv-00914]
jbho: Interesting decision. It seems the ‘free’ nature of the product may have been critical, as the opinion repeatedly states the calls were about a free sample/product. I wonder what the outcome would have been had the calls been related to an abandoned purchase?

Although the court did not discuss it, the complaint goes into technical detail and code review to describe how the Twilio platform – through APIs used to execute calls/texts – has the active capacity to dial a ‘list’ of uploaded numbers. Would have been interesting to see how the court landed on that one.

Plaintiff-Initiated Text Not PEWC

Larson v. Harman Mgmt (A&W)
Motion to dismiss denied – Harman Management Corporation (HMC) allegedly enrolled plaintiff’s mobile in a recurring text program without Prior Express Written Consent (PEWC). Plaintiff texted the word “BURGER” to receive a free A&W Papa Burger Single, and immediately received the following message:

“You have joined A&W Mobile Alerts. Up to 30 messages per month. Text HELP for help. Text STOP to cancel. Message and data rates may apply.”

Plaintiff subsequently received several texts that (allegedly) advertised the availability of and encouraged the purchase of goods at A&W Restaurants.

The court found that although plaintiff consented to the first text by making the request, that request did not constitute the Prior Express Written Consent needed for the subsequent marketing texts (and the court found those subsequent texts were ‘plausibly’ marketing).

UPDATE: 26July2017 – defendant’s motion to stay denied (Doc# 73).
“Any marginal simplification of the issues that may result from the anticipated ruling ACA International litigation is far outweighed by the volume of issues the parties must address irrespective of the D.C. Circuit’s ultimate decision on the issues before it.”

[E.D. CA; 1:16-cv-00219]
jbho: something to keep in mind. Even if your text program is fully MMA/CTIA compliant, that may not be enough for TCPA compliance.

In this case, the text campaign was promoted through in-store signage/TV/print ads, and went viral through social media channels. Plaintiff stated he learned of the free burger promotion through word of mouth.

Perhaps the solution may have been to implement a double opt-in. Then the first (legal) text simply asks the recipient to confirm enrollment – and thereby evidences Prior Express Written Consent for future texts?

Also, yet another case where plaintiffs use snippets of computer code to back their case. Plaintiff quotes 3seventy’s API documentation to allege the system had the capacity to generate random and sequential numbers.

Botched Data Transfer Leads To TCPA Liability

Etzel v. Hooters
Motion to dismiss denied – Hooters allegedly sent (ATDS) marketing texts to individuals who declined to opt-in in advance of the 16 October 2013 PEWC rules going into effect. Hooters then moved to a new text provider, and in the transition, the consent records – who had replied to the PEWC requests – were apparently corrupted.

The court found* that sending text messages in violation of the TCPA – even a single text – constitutes a concrete injury in fact to the recipient.

*quoting heavily from Mey v. Got Warranty (N.D. W.V.; 5:15-cv-00101)
[N.D. GA; 1:15-cv-01055]
jbho: reminder of the importance of good data hygiene, especially if you plan to switch SMS providers.

Attorney Representation Constitutes Revocation Of TCPA Consent?

Bray v. PNC
Motion to dismiss denied – PNC allegedly made autodialed and prerecorded debt collection calls to plaintiffs’ home and mobile numbers, despite being informed in writing plaintiffs were in bankruptcy. Claims were filed under the TCPA and FCCPA.

FCCPA
PNC argued that notice plaintiffs were being represented in a bankruptcy case did not mean plaintiffs were represented for the specific debt PNC sought to collect. The court disagreed, finding “(a) bankruptcy proceeding is ultimately a proceeding to organize or liquidate all of the debtor’s financial obligations.” Since the debt was listed in the bankruptcy proceedings, PNC should have known plaintiffs were represented for the specific debt.

TCPA
Plaintiffs argued they never consented to the calls, and if they did give consent, it was subsequently revoked. The court felt PNC offered no evidence it had consent to contact plaintiffs. Thus there was insufficient evidence to rule on the TCPA claims at the motion-to-dismiss stage.

UPDATE: 20Feb2017 – parties have reached a confidential settlement and the case has been dismissed (Doc #48).

[M.D. FL; 6:15-cv-01705]
jbho: once you know someone is represented by an attorney, probably a good idea to opt them out of future calls.

Disputes Over Oral Consent

Espejo & Levins v. Santander
Ruling on consolidated class claims – In Pereir/Espejo, Santander allegedly made autodialed debt collection calls to skip-traced and wrong numbers, and continued calling after being asked to stop. In Bonner/Levins, Santander allegedly made autodialed & prerecorded debt collection calls without consent, and continued calling despite requests to stop.

Espejo
Santander allegedly contacted Espejo at a number he used to contact Santander. Santander claimed he consented to future contact on the call. Espejo claimed when asked if that was a number to contact him, he responded ‘yes’ to confirm his identity, NOT to permit him to be contacted at the number. Santander also disputed whether Espejo actually asked for calls to stop. The court found these disputes were questions to resolve at trial.

Levins
Santander allegedly contacted Levins at three different numbers:
• one on her credit application (6954) – defendant’s MSJ granted
• one where Levins eventually gave consent (9678) – parties agreed on liability for four calls made before consent obtained (doesn’t say how)
• one in Santander case notes listed as “a good number”, but plaintiff claims Santander never verified (6074) – class certification denied
That plaintiffs challenged the content, clarity, accuracy, and completeness of Santander’s case notes made Levin’s class unascertainable. Class claims also failed on commonality and predominance due to the individualized nature of consent.

ATDS
Santander also argued the “Aspect Telephone System” was not an ATDS, since agents had to push a button to initiate calls. The court disagreed, finding that although agents may push a button, this was only to signal availability so the Aspect system could (auto)dial numbers from an uploaded list and algorithmically assign the call to an available agent. Thus, the Aspect dialer – not the agents – made the calls.
Espejo v. Santander (Pereira v. Santander) [N.D. Ill; 1:11-cv-08987]
Levins v. Santander (Bonner v. Santander) [N.D. Ill; 1:12-cv-09431]
jbho: make sure scripts used to obtain oral consent are clear (maybe send a confirmation email as well).

A reminder that preview mode dialing is no safe harbor.

October 2016

LiveVox HCI Still Not An ATDS

Pozo v. Stellar Recovery
Dismissed without prejudice (private settlement) – Stellar allegedly made autodialed and prerecorded debt collection calls to plaintiff’s mobile after receiving his written cease and desist request. Stellar also allegedly failed to identify itself as a debt collector, repeatedly called debtors with intent to harass, as well as repeatedly called third parties looking for information about the debtor.

The district court granted Stellar’s motion for summary judgement on TCPA claims, ruling the human intervention component of the LiveVox HCI meant it did not constitute an ATDS. Plaintiff filed a motion for reconsideration on that ruling (Doc#65). The parties subsequently reached a private settlement, and the case was dismissed without prejudice (Doc#75).
[M.D. FL; 8:15-cv-00929]
jbho: follow up on from last month. It would have been interesting to see if the HCI process would survive the additional scrutiny. PACER lists an order on the Motion for Reconsideration (Doc#74), but there is no link to that order. Perhaps Steller wanted to put this to bed based on the FDCPA claims (i.e., do 40 calls over a two-month period constitute harassment?).

Spokeo Defense Fails In The Tenth

LaVigne v. First Community Bank
Motion to dismiss denied – First Community Bank (FCB), through its agents, allegedly made autodialed debt collection calls to plaintiff’s mobile, calls intended for another person. Calls allegedly continued despite informing FCB it had reached a wrong number.

The court found that while plaintiff must show an injury-in-fact for each individual call, there was no minimum cost or harm threshold required for Article III standing (“(r)egardless of how small the harm is, it is actual and it is real”). Furthermore, the TCPA directly forbids autodialed calls to mobiles, and unlike the FCRA claims in Spokeo, there was no variation in the impact of a statutory violation of the TCPA. The receipt of unsolicited calls alone caused the concrete harm.
[D. N.M.; 1:15-cv-00934]
jbho: the court was critical of the recent decision in Romero v. Department Stores National Bank (S.D. CA; 3:15-cv-00193), where the court found there was no difference in harm from a manual or autodialed call. “Under Romero, it appears to be nearly impossible for a plaintiff to allege a private right of action under the TCPA for automated solicitation calls.”

September 2016

LiveVox Human Call Initiator (HCI) Not An ATDS

Pozo v. Stellar Recovery
Defendant’s MSJ granted on TCPA claims – Steller allegedly made autodialed debt collection calls to plaintiff’s mobile regarding another person’s debt. Calls allegedly continued despite plaintiff informing Stellar they had reached a wrong number and asking Steller to stop calling – verbally and in writing.

The court found that the Human Call Initiator (HCI) system used by Stellar did not constitute an ATDS since:

• Each call initiated from HCI must be initiated by a human ‘clicker agent’
  • a ‘clicker agent’ monitors a real time dashboard which displays numbers to be called, along with ‘closer agents’ available to take the calls (a ‘closer agent’ is the one who actually speaks with the called party about the debt)
• A ‘clicker agent’ must click a button to launch a call particular telephone number
• A ‘closer agent’ must be available to take a call before HCI will allow a number to be dialed
• If a call is answered, the ‘clicker agent’ transfers the call to a ‘closer agent’

Additionally, with respect to the capacity question, the court found:

• HCI is separate from other dialing systems offered by LiveVox
• HCI uses its own unique software and hardware
• HCI does not use any statistical algorithm to minimize agent wait time between calls, nor does it incorporate any random or sequential number generator
• HCI does not possess any features that may be activated to enable automated calling

The fact that Stellar might be able to hypothetically hire a team of programmers to modify and rewrite large portions of HCI’s code to be an autodialer did not mean HCI had the ‘potential functionality’ to be an autodialer within the meaning of the TCPA and the 2015 FCC Order.

Plaintiff has already filed a motion for reconsideration (Doc #65).
[M.D. FL; 8:15-cv-oo929]
jbho: another potentially helpful guideline in determining whether or not a system constitutes an ATDS.

This case is interesting for several reasons:

1. The HCI appears to have predictive qualities, but a human does the predicting – a human pushes a button to make a call, then the machine routes the call to a waiting agent. Clever. 
2. Plaintiff appears to have dropped FCCPA claims in his amended complaint. Perhaps since he is not the debtor, he had no standing? Wonder if this will impact the FDCPA claims.
   • Note: 15 U.S.C. § 1692d does say, “(a) debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” While FL 559.72(7) says, “(i)n collecting consumer debts, no person shall: … (w)illfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.” (emphasis added)
     However, in Juarez v. Citibank (N.D. CA; 16-cv-01984) the court declined to dismiss Rosenthal Act claims since “(plaintiff) fits perfectly well into the second classification of debtor — those who are alleged to have a consumer debt.” (emphasis added)
3. Will the jury determine that 40 calls over a two-month period constitutes harassment?

Stay Tuned…

Depositing Funds Moots Individual and Class Claims

Fulton Dental v. Bisco
Dismissed – Bisco allegedly sent fax advertisements without consent and without the statutorily required opt-out notice. Plaintiff rejected a settlement offer of $3,005 for the one fax he received ($1,500 for sending the fax and $1,500 for failing to include the opt-out notice). The offer was made prior to plaintiff filing a motion for class certification. Bisco then filed a motion to deposit $3,600 to cover the maximum amount of damages allowed by the TCPA, plus $600 for incidental costs.

On plaintiff’s individual claims, the court found that that:
1) Deposits are permitted even if they have substantive effects on the parties’ legal positions (immediate tender under Rule 67).
2) Bisco’s motion represented an “unconditional surrender” of funds without regard to the outcome of the lawsuit. This “unconditional surrender” meant there was no longer a live controversy on plaintiff’s individual claims.
3) Although the failure to receive declaratory relief could cause harm, such harm did not establish Article III standing.
4) Since the order will require Bisco to stop sending improper faxes to plaintiff, injunctive relief was also satisfied.
Thus, plaintiff would have no remaining personal stake in the litigation.

On class claims, the court found that plaintiff’s class claims were moot as Fulton failed to file a motion for class certification BEFORE its individual claims were mooted. The mere presence of collective-action allegations in the complaint could not save the suit from mootness once the individual claim were satisfied (at least not in the 7th).

Therefore, plaintiff’s individual and class claims were both mooted, and the case was dismissed for lack of subject matter jurisdiction.
[N.D. Ill.; 15-cv-11038]
jbho: a fax case, but still interesting for the procedural elements – in this case what it takes to successfully ‘pick-off’ the lead plaintiff.

Also, a reminder that plaintiffs can claim multiple TCPA violations for a single call/text/fax.

August 2016

Unwanted Calls Cause Harm Sufficient For Standing; ATDS Determination Is A “Merits Issue”

Ung v. Universal Acceptance
Motion to dismiss denied – Universal allegedly made autodialed debt collection calls to plaintiff’s mobile. The calls were intended for a tenant living in one of plaintiff’s properties. Plaintiff claimed he did not have an account with Universal, never provided his number to Universal, and that calls continued despite his requests they stop.

On Article III standing, the court found the FCC and Case Law have recognized the harms inherent in the receipt of automated calls, and that the receipt of unwanted phone calls constitutes a concrete injury sufficient to create standing under the TCPA.

On the ATDS question, Universal claimed the calls were manually dialed, but the court found “a defendant may transgress the (TCPA) by manually dialing an unwanted phone call, as long as the system used to make the call has the capacity to autodial.”

Interestingly, the court went on to say it made no difference whether the calls were manually dialed or autodialed because the resultant harm was the same. The question of whether the calls were autodialed or manually dialed was a merits issue, not a jurisdictional issue such as standing. Thus Universal’s Motion to Dismiss for Lack of Jurisdiction was denied.
[D. MN; 0:15-cv-00127]
jbho: a reminder that the interpretation of what constitutes an ATDS remains very broad.

Mercury Predictive Dialer Is An ATDS?

Manuel v. NRA Group
Plaintiff’s motion for summary judgment granted in part and denied in part – NRA allegedly made some 140 autodialed, prerecorded debt collection calls to plaintiff’s mobile, a number NRA obtained from a skip-tracing company who claimed it was a landline number. Calls continued despite plaintiff’s request they stop. Plaintiff claims he also submitted a complaint to the CFPB, after which the calls stopped.

NRA argued the calls were manually dialed, as human intervention was required for each call (pressing F4). However, the court found that the Mercury Predictive Dialer, as used by NRA did not require human intervention, as the F4 key merely signaled an agent was available to be transferred to a preexisting live connection. That the Mercury Predictive Dialer would automatically terminate calls when reaching an answering machine further illustrated the lack of human involvement in the dialing process.

Plaintiff’s motion for treble damages was denied, as there was insufficient evidence to demonstrate NRA knew, or should have known, it was dialing a mobile number. That determination was best left to a jury.
[M.D. PA; 1:15-CV-00274]
jbho: a reminder of the low bar in defining an ATDS.

Interestingly, the court hinted it may have reached a different result if collection agents had to affirmatively prompt the Mercury Dialer to place each individual phone call. Perhaps a lesson on how to tune call assist technologies to avoid the ATDS determination.

Also, this is not the first time the Mercury Predictive Dialer has been deemed an ATDS. A Florida court reached a similar decision in Brown v. NRA Group (M.D. FL; 6:14-CV-00610) in June 2015. In that case, the court declined to assess treble damages based on NRA’s claim it was unaware that the Mercury Predictive Dialer was in fact a predictive dialer. 

July 2016

Mobile App Dodges Suit Over Friend Invitations

Cour v. Life360
Dismissed – Life360, through a Forward-To-A-Friend invite feature of its mobile app, allegedly sent an unsolicited autodialed text to plaintiff’s mobile. The text read:

[Recipient’s name], check this out! life360.co/[hyperlink to Life360’s website]
Plaintiff claims he had no relationship with Life360, and never consented to receive the text.

The court found that although plaintiff had standing on injury claims, Life360 was not the maker/sender of the texts. The process employed by the Life360 app was consistent with processes the FCC determined made the app users – and not the app – the maker/sender of texts (2015 omnibus rulemaking on TextMe petition).

The process:

• After downloading the Life360 app and creating an account, users were asked, “Want to see others on your map?”
• Users who clicked ‘Yes’ were asked for permission to access their contacts
• Users who allowed permission were then brought to an ‘Add Member[s]’ screen with a tickbox next to each contact o the Life360 app preselected ‘recommended’ contacts (prechecked tickboxes)
• Users were presented an ‘Invite’ button showing the number of selected contacts o after pressing ‘Invite’, users could select to be notified when their contacts join
• Users were not shown the invite, and could not edit the invite message
• Users were not informed how invitations would be sent

The court deemed there was sufficient user intervention to make the app users the maker/sender of the texts. That the user could check and uncheck boxes demonstrated the ‘affirmative choices by the app user’ called out by the FCC in its TextMe ruling.

The court also found the fact that the Life360 app did not specify invites would be sent via text was irrelevant, as the channel was irrelevant in determining who “makes” a call.
[N.D. CA; 4:16-CV-00805]
jbho: I’d still advise against address book blasts, but look like if you can introduce enough user interaction in the contact selection process, you may be safe moving forward with multiple invites per click.

Lyft Partially Dodges Liability For User Generated Texts

Wright v. Lyft
Dismissed with prejudice – Lyft allegedly sent unsolicited (ATDS) text invitations through a Forward-to-a-friend feature of its mobile app. The text read:

Jo Ann C. sent you a free Lyft ride worth $25. Claim it at http://lyft.com/getapp/MD15M215.

The court found the processes implemented by Lyft made clear the texts were user generated invitations permitted under the TCPA (consistent with the 2015 FCC rulemaking addressing the TextMe petition). Users were prompted to access an “invite friends” function in the app which accessed the users address book and allowed the user to identify specific contacts or choose a “Select All” function. This multi-step process demonstrated the user made affirmative choices so as to be deemed the initiator of the call. TCPA claims were thus dismissed.

However, the court found plaintiff adequately plead claims under Washington’s Commercial Electronic Mail Act (CEMA), as CEMA does not distinguish initiators of a commercial message, and the message in question was “commercial” (citing Chesbro v. Best Buy). Additionally, claims under Washington’s Consumer Protection Act (CPA) as injury – however minuscule – were plausibly alleged (e.g., paying to receive the unsolicited text, losing full capacity of his phone, wear and tear on battery).
[W.D. WA; 2:14-CV-00421]
jbho: probably best to avoid offering consideration in Forward-to-a-Friend campaigns (makes the message marketing).

And a reminder it’s not just the TCPA, some states have telemarketing/anti-spam laws that are equally or even more restrictive.

UPDATE: 6Nov2018 – Motion for preliminary settlement on CEMA claims (DOC #90). Highlights include:

• $3,995,000 non-reversionary settlement fund
• $13 – $132 for each class member (expected)
• $5,000 for class representative (requested)
• $1,000,000 for class counsel (requested – 25% of settlement fund)

Consumer Did Not Prove Revocation of Consent 

Reyes v. Lincoln Automotive Financial
Defendant’s MSJ granted – Lincoln allegedly continued to make autodialed debt collection calls after plaintiff requested they stop. The court found that the letter sent was insufficient to revoke consent as:
• it was vaguely addressed
• it was unsigned
• plaintiff had no recollection of sending
• plaintiff had no recollection of the address to which the letter was sent
• defendant had communicated to plaintiff the alleged letter was never received

Update – 22June2017: The appellate court found the district court erred in discounting the revocation letter, as there were actual facts in dispute that raised questions for a jury. However, the appellate court ruled that plaintiff had no right to revoke consent, as consent was obtained as a ‘bargained-for consideration in a bilateral contract.
https://jbho.blog/2017/06/25/tcpa-consent-not-revocable-if-part-of-contract/

UPDATE: 20Oct2017 – The 2nd Circuit denied plaintiff’s petition for rehearing or rehearing en banc.

[E.D. NY; 2:15-cv-00560]
jbho: Sounds like plaintiff may have been trying to entrap? All he had to do was say ‘stop calling’.

Also interesting here is that the Credit Terms and Conditions had a clause indicating plaintiff consented to Ford Credit using “any telephone number” provided by Plaintiff. I wonder if Ford would have got the same ruling if the calls had been to a skip-traced number?

No Injury Where Plaintiff Manufactured Claims

Stoops v. Wells Fargo
Defendant’s MSJ granted – Wells Fargo allegedly made autodialed debt collection calls to reassigned (wrong) mobile numbers. Plaintiff purchased 35 pre-paid phones in Pennsylvania, but specifically requested Florida area codes. Plaintiff admitted she selected the numbers specifically so they would appear to come from economically depressed areas – and were thus more likely to get collection calls – as part of her ‘business’ as a professional TCPA plaintiff.

The court ruled that despite the fact Wells Fargo made the calls without consent, she had suffered no injury to privacy interests (only purpose in using her cell phones was to get calls to file TCPA lawsuits), nor to her economic interests (purchased airtime for the sole purpose of receiving more calls). Furthermore, absent injury, plaintiffs interests did not fall within the ‘zone of interests’ intended to be protected by the TCPA.
[W.D. PA; 3:15-cv-00083 ]
jbho: bad news for TCPA trolls…

Robocalls Cause Concrete, Particularized Harm

Mey v. Got Warranty
Defendant’s motion to dismiss denied – Got Warranty allegedly made autodialed telemarketing calls promoting the extended automobile warranties to plaintiff’s mobile, a number that was on the National Do Not Call Registry.

The court found that unwanted phone calls cause concrete harm.

• Tangible harms:
  • depleting phone battery / cost of electricity to recharge (“While certainly small, the cost is real, and the cumulative effect could be consequential.”)
  • depleting limited minutes / incurring charges for calls (for pre-paid phones)
• Intangible Harms:
  • invasion of privacy
  • intrusion upon and occupation of the capacity of a phone (trespass to chattels)
    wasting the consumer’s time
  • causing the risk of personal injury due to interruption and distraction

[N.D. WV; 5:15-cv-00101]
jbho: another example of how plaintiffs can double dip for violations of §227(b) & §227(c).

More TCPA Fun

• Settlements
• Complaints
• Petitions & Orders