TCPA Case Law Review for July and August 2017

insideARM maintains a free TCPA resources page to provide the ARM community a destination for timely and topical information on the Telephone Consumer Protection Act of 1991 (“TCPA”). This page is generously supported by Neustar. See the page here or find it in our main navigation bar from any page on insideARM under Compliance Portals.

The cornerstone of the page is a chart of significant TCPA cases. Click on the link in the chart for the complete text of the decision. Where insideARM has already published a story on the case, we provide a link. Case information is provided by the Bedard Law Group.

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It has been a busy summer for the courts, which have been weighing the many complex issues wrought by the TCPA. The following are some of the cases published in the last 60 days that should be interesting to members of the ARM community.

Schweitzer v. Comenity Bank

The gist: Plaintiff Schweitzer limited her consent to a collection agency’s calls by making clear the times that she was not able to take those calls. Comenity’s collectors continued to make automated calls, and Schweitzer brought suit. The court found that yes, the TCPA allows consumers to “provide limited, i.e., restricted, consent for the receipt of automated calls. It follows that unlimited consent, once given, can also be partially revoked as to future automated calls under the TCPA...Our conclusion is supported by the maxim that the greater power normally includes the lesser. We think it logical that a consumer’s power under the TCPA to completely withdraw consent and thereby stop all future automated calls...encompasses the power to partially withdraw consent and stop calls during certain times.”

Daubert v. NRA Group, LLC

The gist: Plaintiff Daubert sued under the TCPA for 69 calls placed by an autodialer without his express consent, and won. He also initially prevailed on his FDCPA claim based on a visible bar code on a notice for the same debt, but was denied a motion for summary judgment. Defendant NRA appealed, and the appeals court upheld the TCPA decision but reversed the FDCPA win. The key takeaway from the case?  A $25 Medical Bill Turns into $34,500 TCPA Judgment. The court found there was no express consent for the calls.

Susinno v. Work Out World Inc.

The gist:  Noreen Susinno alleged that she received an unsolicited call on her cell phone from Defendant fitness company Work Out World (WOW). She didn’t answer the call, and WOW left a prerecorded promotional offer on her voicemail. Susinno alleges that the call and message violated the TCPA’s prohibition on pre-recorded calls to cellular telephones. WOW moved to dismiss Susinno’s complaint for lack of subject matter jurisdiction, and the motion was granted. But in July, appeals court decided the TCPA provides Susinno with a cause of action, and her alleged injury is concrete. The case now has a clear runway to proceed.

Fulton Dental, LLC v. Bisco, Inc.

The gist:  Putative class representative, Fulton Dental, LLC, received an unsolicited fax from defendant Bisco, Inc., and sued for damages. Before Fulton moved for class certification, Bisco tendered an offer to Fulton under Rule 67, which allows a party to deposit a payment with the court. The district court concluded that Bisco’s maneuver was enough to moot Fulton’s individual claim and to disqualify Fulton Dental from serving as a class representative, so it dismissed the entire action. This dismissal was reversed, with the Seventh Circuit finding that an unaccepted offer to settle does not moot a plaintiff’s case, adding,”...we see no principled distinction between attempting to force a settlement on an unwilling party through Rule 68...and attempting to force a settlement on an unwilling party through Rule 67. In either case, all that exists is an unaccepted contract offer, and as the Supreme Court recognized, an unaccepted offer is not binding on the offeree.” The case is returned to the district court for further proceedings.

Borecki v. Raymours Furniture Co., Inc.

The gist: Plaintiff Scott Borecki purchased a bedroom set from defendant Raymour Furniture Co., Inc., d/b/a Raymour & Flanigan, and provided Raymour his cell phone number so that he could be reached when the furniture was ready to be claimed. That transaction also entered Borecki into an arbitration agreement with Raymour.  Nearly three years later, Raymour sent Borecki cell spam advertising without his consent. The arbitration agreement in place since the furniture purchase was invoked by Raymour in a motion to compel arbitration. The court decided that Borecki’s claim, styled as a putative class action, was not governed by the earlier arbitration agreement, which the court found to be too narrow. The case will proceed.

insideARM Perspective

For any major piece of legislation of the breadth as the TCPA (take ERISA for example), the body of case law that emerges to define its boundaries ends up being wide and deep. Eventually, litigation tapered off for ERISA after four decades, but the TCPA is not as seasoned, and is clearly in its period of trial by fire. While a challenge to the ARM community, the limits of the TCPA in the courtroom will ultimately carve a clearer path for an industry working toward more transparency and better consumer protection protocols.

This summer’s cases all had what are considered negative outcomes for the ARM space. These suits grappled with the critical issues of consent/revocation of consent, who has standing to make a claim under the TCPA, and how a claim can be shunted---all ultimately questions about the power of consumers. Understandably, the courts want and need to explore those questions in their entirety, and seem to be leaning toward interpretations that remove procedural impediments that could squash cases and prevent that exploration.

Rather than take a purely negative view, we’re inclined to see this as a period of learning for every player in the ARM space. This difficult legal landscape is also a great teacher and can be the backdrop for tremendous improvement.