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December 2022 - Call Compliance News
A California court has disqualified a plaintiff as a class representative after finding she may have used her cell phone for business purposes and lacked credibility regarding some of her responses in discovery. Trim v. Mayvenn, Inc. Defendant pointed to a television appearance where plaintiff’s telephone number was broadcast on the screen as her business contact although in her discovery responses, she indicated that she had not used her cell phone number in public media related to her work. The Court therefore denied class certification.
A California court has dismissed a purported class action brought by a consumer who received eight text messages. Hudson v. Identity Intelligence Group, LLC. The Defendant argued that Plaintiff did not sufficiently allege it sent the texts, which were sent by an unidentified third party. The texts advertised a third-party website which contained the Defendant’s product, but Plaintiff did not show it sent the texts and the judge therefore dismissed the case.
A Florida court has dismissed a Telephone Consumer Protection Act (“TCPA”) case based on alleged receipt of five unsolicited text messages. Muccio v. Global Motivation, Inc., et al. The Court ruled that receipt of five text messages did not give sufficient standing to the Plaintiff to sue under Article Three of the United States Constitution.
An Illinois court has ruled a plaintiff does not have to allege he personally added his number to the national “do-not-call” list to pursue a TCPA claim against a company which allegedly called him twice. Moore v. Healthcare Sols., Inc., et al.
A New Jersey court has awarded a TCPA defendant attorneys’ fees and costs of more than $160,000 after finding the Plaintiff sent himself 1,590 texts to create a TCPA lawsuit. D’Ottavio v. Slack Techs.
Comment: The court had previously allowed Plaintiff’s counsel to withdraw, and Plaintiff proceeded pro se, despite the fact he was enrolled at Rutgers Law School. The Court found he engaged in willful and wanton misconduct.
New York has enacted a new disclosure requirement (SB 8450) that telemarketers promptly disclose an option to automatically be added to the seller’s internal “do-not-call” list. The bill goes into effect March 6, 2023.
Comment: Calls to businesses and calls made with prior express consent are exempt.
An Oklahoma court has ruled that the phrase “marketing partners” did not necessarily allow a third party who purchased a lead to call a consumer who opted in on the lead generator’s website. Tyner v. Hi.Q, Inc. The Court ruled, “[t]he web form at issue did not “clearly authorize” Health IQ to deliver or cause to be delivered to Tyner telemarketing messages using an artificial or prerecorded voice. Instead, it clearly authorized “CAC” and the “Marketing Partners” to make such calls.”
Comment: If you purchase leads from third parties, you should ensure the language used to gather those leads is legally compliant both by requiring your vendor to comply with the law in contract and by auditing that language. Contractual indemnity alone will not protect you from a lawsuit and can give you financial protection only to the extent the vendor is solvent, available, and able to pay potential attorneys’ fees and potential damages.
A Washington court has refused to dismiss a claim brought against a pharmacy which allegedly hired vendors to make prerecorded “avatar” calls to consumers. Williams v. PillPack, LLC. The Court ruled that whether these vendors were agents of PillPack was an issue of fact and not appropriate for summary judgment.
Comment: For a third-party seller to be liable for the illegal actions of vendors, plaintiffs must prove an agency relationship and that the calls were made with the actual authority of the seller. It is very important that your contract with vendors require legal compliance, deny authority to make illegal calls or actions, and designate the vendor as an independent contractor, not the agent of the seller.
A bill has been introduced in the Washington House (HB 1051) which would create a “mini-TCPA” restriction if passed. The bill would bar prerecorded or artificial messages absent prior express written consent, and specifically applies to “ringless” voicemail.
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