Several recent court opinions highlight ongoing concerns associated with TCPA litigation. The following is a high level summary and analysis of some of these opinions.
Booth v. Appstack, Inc. (W.D. Washington). The Court granted Plaintiff’s motion to certify a class action TCPA lawsuit stemming from prerecorded messages sent to cell phone numbers used by small businesses. Although the opinion primarily deals with class certification requirements, it highlights the risk associated with business-to-business (B2B) calls made to cell phones using an ATDS and/or prerecorded message. Many businesses assume that (B2B) calls are entirely exempt from the TCPA; however, this opinion demonstrates that is an incorrect (and dangerous) assumption.
Abdeljalil v. GE Capital Corp. (S.D. California). This class action lawsuit stems from collection calls made to consumers that were not GE customers at the time of the call. Plaintiff sought to certify a class of consumers who met specific criteria, including: (1) GE made at least two calls to their cell phone using an ATDS or prerecorded message; (2) they were not GE customers at the time of the calls; and (3) GE’s business records indicate that, prior to the second and any subsequent calls, the consumer indicated he or she was not an account holder (as evidenced by terms such as “wrong number,” “incorrect number,” or “third party” in the customer records).
The parties disputed whether each requirement for class certification was met; however, the primary disputes focused on the ascertainability of the proposed class and whether the named plaintiff’s claims were typical of other class members. The Court held that the class was ascertainable because class members can be determined by relying on objective criteria based on GE’s own business records. Similarly, it held that, based on the class definition, the named plaintiff’s claims were typical of other class members.
One of the hurdles that plaintiffs in “wrong number” or “reassigned number” cases face is the ability to meet all criteria required to certify the lawsuit as a class action. As this case demonstrates, however, it is not always an impossible hurdle to overcome.
City Select Auto Sales, Inc. v. David/Randall Assocs. (D. New Jersey). The Court entered judgment for over $22 million ($500 per fax) against David/Randall Associates, Inc. (David/Randall), a commercial roofing company located in Pennsylvania, based on violations of the TCPA’s “junk fax” provisions. The faxes— sent by a third party vendor on David/Randall’s behalf— violated the TCPA because it did not have proper authorization for such faxes and because the faxes did not meet other technical requirements. The evidence also demonstrated that faxes continued to be sent after David/Randall received numerous complaints from fax recipients. This is yet another example of a company incurring TCPA liability because of insufficient due diligence on vendors and failure to mitigate damages after receiving consumer complaints.
Kolinek v. Walgreen Co. (N.D. Illinois). Last year, we wrote about how the Northern District of Illinois originally dismissed this case (holding that the Plaintiff consented to the calls in question by providing his phone number to Walgreens), but later vacated the dismissal because it misapplied the FCC’s “prior express consent” rulings. According to the Court’s revised opinion, the scope of the consumer’s consent depends on the context and purpose for which the phone number is given. This was problematic for Walgreens because the Plaintiff alleges that Walgreens told him his number would be used for verification purposes only. The parties have now agreed, pending approval from the Court, to settle the dispute for $11 million.
Haghayeghi v. Guess ? (S.D. California). Guess filed a motion to dismiss the lawsuit arguing, among other things, that it had consent for the text messages sent to Plaintiff because she admits in the Complaint that she provided her phone number to Guess. The Court denied the motion, finding that there was a dispute as to whether Plaintiff consented to receive the texts. Although the Court did not elaborate on the parties’ consent dispute, one of the primary issues may be the FCC’s written consent requirements that went into effect on October 16, 2013. The Plaintiff alleges receiving texts as late as December 2013; therefore, even if Guess had “prior express consent” for texts sent prior to October 16, 2013, (based on the consumer’s provision of her phone number), it may not have had written consent for texts sent after that date. The case also demonstrates the difficulty of successfully asserting a consent defense at the motion to dismiss stage of a lawsuit.