TCPA Caselaw Review for January 2018

insideARM maintains a free TCPA resources page to provide a destination for timely and topical information on the Telephone Consumer Protection Act of 1991 (“TCPA”) that is relevant to the ARM community. This page is generously supported by Neustar. 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, a link is provided. Case information is provided by the Bedard Law Group.

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The following are case highlights from January 2018 that should be interesting to members of the ARM community.

Patterson v. Ally

The issue: Consent and revocation

The gist: Florida’s U.S. District Judge Timothy J. Corrigan has decided that a TCPA claim against Ally Financial Inc. will proceed to trial. At issue is whether Ally improperly called a consumer more than 1,200 times to collect on an auto loan. Plaintiff Eugene Patterson does not dispute that he granted Ally permission to call, but he also claims to have orally rescinded his consent on three occasions. Ally has no record that any of these revocations took place. This factual dispute is beyond the purview of summary judgment, so the case will proceed to trial.

Ferrer v. Bayview

The issue: Automatic telephone dialing system

The gist: The Southern District of Florida decided that if a dialing system can’t predictively dial, store or generate phone numbers, nor place a call without human input, it’s not an automatic telephone dialing system (ATDS) under the TCPA.

Plaintiff Maria Ferrer filed suit alleging Bayview repeatedly called her cell phone in violation of the TCPA. A claim under the TCPA requires a plaintiff to show that the calls were made to a cell phone by ATDS, and that there was no prior express consent in place. While Bayview admitted it used an ATDS to call Ferrer on other numbers that belonged to her, it presented evidence and testimony to establish that when it came to the cellphone, the Avaya XI Platform was in use. The Avaya, since it simply permits users to manually dial phone calls using a computer keyboard and mouse, does not qualify as an ATDS under the TCPA. Bayview moved for summary judgment on plaintiff’s TCPA claim in part on the grounds that Bayview did not use an ATDS for the calls it made to plaintiff’s cell phone. The court agreed with Bayview, and granted its motion for summary judgement.

For additional insight, read this article by Kristen Peters on insideARM.

Lemieux v. Lender Processing Center, et. al.

The issue: Indemnification & contribution

The gist: The Southern District of California dismissed a third-party counter-claim for indemnity on the basis that the TCPA affords no right to indemnity or contribution. In the original case, the plaintiff Lemieux filed a class action against Lender Processing Center and Hightech, alleging a violation of the TCPA. Plaintiff then voluntarily dismissed defendant LPC. Hightech then filed a third-party complaint against Elite One Plus, Inc., 800 Capital, Inc., Shabab Tareh, Amir Montazeran, and Allan Buenafe. Hightech alleges that the third party defendants provided it with lead generation services via telemarketing, so are responsible for the alleged TCPA violations.

Hightech’s claim was the only survivor from original filing. In its third-party claim, Hightech argued that the Ninth Circuit and the FCC have suggested that indemnity and contribution are available under the TCPA because “sellers and third-party marketers may be jointly liable for TCPA violations.” The court found that this interpretation “improperly extends” the reach of other vicarious liability cases: Gomez v. Campbell-Ewald Co., 768 F.3d 871 (9th Cir. 2014) and two cases that involved Dish Network: Krakauer v. Dish Network LLC, No. 1:14-cv-00333, M.D.N.C. and United States of America et al. v. Dish Network LLC, No. 3:09-cv-03073.

The Gomez and Dish Network cases both specifically addressed the vicarious liability of a telemarketer (the analog in this case would be Hightech) for the acts of its agent (in this case the third party defendants). Neither Gomez nor Dish Network cases addressed the right of a telemarketer to seek indemnity or contribution from an agent. Therefore, the court rejected Hightech’s argument and concluded that claims for contribution and indemnity are not available under the TCPA.