November 2014

FCC

The FCC has issued an Order confirming that fax ads must contain certain information, allowing consumers to opt-out, even if consumers previously expressly consented to receive facsimiles from the sender.  C.G. Docket No. 05-338, Released October 30, 2014.  The FCC has provided a six-month window to allow parties to come into compliance with the Order.

California

A court has lifted a stay of a case brought against a mortgage company alleging violations of the TCPA. Jordan v. Nationstar Mortgage.  The court originally postponed decision on the motion based on the FCC’s current status deliberating issues regarding the definition of automatic telephone dialing system (ATDS).

Comment: The court noted that the FCC gave no indication that it would resolve petitions for declaratory ruling in the near term, “if ever.”  The court ruled that it is its obligation to provide a just, speedy, and inexpensive determination of the case rather than awaiting the FCC’s decision on the petitions.  The issue specifically involved in this case involved whether express consent provided by a previous holder of the number applied when the number had been reassigned to a new subscriber.

A California court has certified a class of persons who allegedly received illegal calls on their cell phones from a law firm.  Whitaker v. Bennett Law.  The law firm made debt collection calls, but allegedly did not obtain express consent from the recipients of the call to call their cell phone numbers.  A default was entered against the law firm.

A California court has rejected Plaintiff’s claim that an operator of gyms violated the TCPA by calling the number using an ATDS.  Marks v. Crunch San Diego, LLC.  The court questioned the FCC’s interpretation of the term ATDS and ruled that “random or sequential” in the definition of ATDS meant that it must dial in that fashion or it was not within the definition.

Comment: The plaintiff’s firm files scores of these actions and this is a potentially huge victory for TCPA defense firms.

In another defense victory in a TCPA case, likely a setup by a class action firm and its plaintiffs, a court has issued sanctions against a plaintiff for destroying evidence.  Olney v. Job.com.  Plaintiff registered his resume on August 12, 2012 with an online site, and filed suit in October after receiving telephone calls to the number he listed on his resume.  Evidence from a third party showed that the plaintiff had run a program called “Winclear” on January 16th, the day before he turned his computer over to the defendants for inspection.

Comment: Again, the plaintiff, represented by a group of firms in California that file scores of these cases.  Ethical lapses like this could affect their other actions.

Florida

The Eleventh Circuit Court of Appeals recently clarified that “charged for the call” in the TCPA applies only to “another service for which the called party is charged,” not numbers assigned to a “cellular telephone service.”  Osorio v. State Farm Bank.

Comment:  The Defendant argued that the Plaintiff would have to be charged for each cellular telephone call for the TCPA cellular ban to apply. The Court disagreed, saying that the restriction to calls to cell phones applied regardless of whether the recipient of the call was charged for each individual phone call.

A Court recently entered a default judgment against Bank of America.  Coniglio v. Bank of America, N.A.  The husband and wife plaintiffs alleged that they had received approximately 350 calls on each of their numbers and the court awarded trebled damages for willful knowing violations or $1500 per call, a total of $1,050,000.  The court also awarded the plaintiffs court costs and reasonable attorneys’ fees.

Comment: This is the highest damage award I have seen in an individual rather than class action. Court records show that the defendant was served with the suit on July 14, 2014.  I am not sure why the defendants defaulted on this suit.

A Florida court has denied a motion for class certification filed at the same time a Complaint was filed.  Physician’s Health Source, Inc. v. Greenway Health.

Comment: The plaintiffs filed a motion for class certification immediately to prevent defendants making an offer of judgment in an attempt to make the individual plaintiffs’ claims moot.  Courts are mixed regarding whether plaintiffs can file a Rule 23 class action certification motion prematurely to accomplish this goal.

A Court has denied a motion brought by a debt collector which argued that the plaintiff was not the intended recipient of the debt collection call and, therefore, had no standing to sue under the TCPA.  Tang v. Medical Recovery Specialists, LLC.

Comment: Courts have generally allowed parties who received telephone calls to sue under the TCPA, even if their number was previously held by another person who did expressly consent to receive calls.  It is your responsibility to “scrub” against disconnected or reassigned number databases to ensure that a phone number on a list is still accurate.

A Florida appellate court has ruling that a showing of liability under the TCPA does not require a showing of actual injury or damages.  Palm Beach Golf Center-Boca Inc. v. John G. Sarris D.D.S.  The dentist also argued unsuccessfully that the third party, which actually provided the fax service, was the sender, rather than him.

Michigan

A court has awarded summary judgment to a debt collector who showed that the plaintiff had provided the creditor express consent by providing her telephone number to the creditor on a patient information form. Miller v. NRA Group, LLC.  The court ruled that it made no difference that NRA Group placed the call on behalf of Aspen Dental.

Comment: This judge used the correct standard of “prior express consent” as defined by the FCC for non-telemarketing calls, i.e. the recipient of the call provided her telephone number to the defendant and did not make instructions to the contrary.

Nevada

A Nevada court has ordered an evidentiary hearing regarding whether a class could be certified of persons called by a payday loan company.  Applicants for the loans listed referenced on an application, and if the applicant was delinquent, the loan company would call the references’ numbers using an ATDS.  Bates v. Dollar Loan Center

The Court did not grant certification, but ruled that certain questions needed to be answered to determine if the class was certifiable, including whether the named plaintiff’s claims were typical of that of the class.

Comment: If you use an ATDS and call cell phones, you should be very careful regarding how those numbers were obtained.  If you cannot verify how the numbers were obtained, then you should not use an ATDS or you should ensure that no calls are placed to cell phones.

Tennessee

Tennessee is one of the few states which still publishes its own “do-not-call” list and requires entities to purchase it prior to making calls into the state.  The form for this purchase requires a toll-free number.  I discussed this with the administrator of the program, Jimmy Hughes, who informed me that the form is incorrect and the number does not need to be toll-free.