April 2022 - Call Compliance News
Second Circuit Court of Appeals
The Second Circuit Court of Appeals has denied Todd Bank’s request to amend a complaint that had been dismissed at the district court. Bank v. GoHealth, LLC. Bank argued that the district court did not allow him the opportunity to amend his earlier complaint, but the appellate court disagreed saying that was solely within the trial judge’s discretion to allow a third amended complaint. Bank had alleged a prerecorded call which violated both federal and state law. The judge denied his standing to sue, however, because the call was received by his mother. The judge concluded he failed to suffer an injury as he did not suffer an invasion of his privacy.
Comment: Defendant also argued that the plaintiff failed to have a cause of action because he is a serial Telephone Consumer Protection Act (“TCPA”) litigant. The judge denied this argument.
California’s Senate has advanced a bill (SB 1059) through the Judiciary Committee increasing the likelihood it will ultimately be adopted into law. The bill amends the state’s definition of “data broker” to include any business that knowingly collects and shares certain personal information and shares it with third parties. The current version of the law applies only if the data broker sells data, rather than “shares” it.
Another bill has been introduced in the California Senate (SB 1380) which would require state agencies to notify consumers of personal data breaches.
A California court has ruled the terms “willful or knowing” in the TCPA require that the caller knew or was reckless in not knowing that the activity violated the law. True Health Chiropractic, Inc. v. McKesson Corp.
Comment: If a violation is “willful or knowing” the TCPA provides for treble damages. This plaintiff argued that intentionally sending a fax meant the violation was “knowing,” but the court disagreed, ruling treble damages were only available if the sender knew that the fax was illegal.
District of Columbia
A TCPA plaintiff has been sanctioned for failure to comply with discovery. Betz v. My Computer Career, Inc. The court ordered plaintiff to comply with document production within 14 days or face additional sanctions, including but not limited to dismissal of the case. The court also subsequently denied Betz’ motion to reopen discovery after he failed to schedule any depositions before discovery ended.
An Illinois court has refused to dismiss a purported class action alleging violation of the “do-not-call” list and internal “do-not-call” policy requirements by a seller of consumer solar panels. Moore v. Pro Custom Solar, LLC. The judge ruled the calls that were received were telephone solicitations and plaintiff sufficiently alleged the solar company did not train its employees in the existence and use of its internal “do-not-call” policy.
Comment: Plaintiff’s counsel is Avi Kaufman, who is very active in the TCPA class action area, especially with regard to internal “do-not-call” policy requirements. Plaintiffs’ claims are commonly shifting to “do-not-call” claims after the Facebook v. Duguid, 141 S. Ct. 1163, 1167 (2021) decision clarified the definition of “automatic telephone dialing system” (“ATDS”). If you would like assistance with compliance regarding the TCPA’s internal “do-not-call” list and policy requirements, please contact us.
A judge has denied a company’s “motion to bifurcate” discovery in a wrong number case where a restaurant mistakenly provided plaintiff’s number to Grubhub as its contact number. Marshall v. Grubhub, Inc. The judge noted the case had been ongoing for more than two years prior to the motion to bifurcate discovery and ordered class and individual discovery to continue at the same time.
The Oklahoma House is likely to pass a bill known as the “Telephone Solicitation Act of 2022” (HB 3168) which would mirror the “mini” TCPA law passed by Florida last year. Under the bill, a person cannot knowingly make a telephone sales call if the call involves an “automated system” for selection or dialing of telephone numbers or the playing of a recorded message unless the caller has the prior express written consent of the called party.
Comment: The bill would only apply to organizations that are required to register as a telemarketer in Oklahoma, exempting many organizations, including publicly traded companies, supervised financial institutions, etc.
A judge has affirmed an arbitration award to a bank after it successfully defended TCPA claims from a credit card holder who received debt collection calls. Credit One Bank, N.A. v. Lieberman. The arbitrator awarded the bank $286,000 and the bank claimed an additional $73,000 to defend the appeal for a total of almost $360,000. Although the bank called Lieberman more than 600 times, the credit card agreement adequately provided the bank express consent for these calls.
Comment: Counsel for plaintiff, Marcus & Zelman, LLC, is not subject to this award, but they may face other claims. The arbitrator held that Lieberman misrepresented interrogatory responses and noted that claimant decided to compel arbitration and sought compensation for fraudulent claims.
A Pennsylvania court has refused to strike the opinion of a plaintiffs’ expert witness in a TCPA class action. Heidarpour v. Vision Solar, LLC. Jeffrey Hansen wrote an opinion for the plaintiffs stating that defendant’s dialing system was an ATDS as the term is defined in the TCPA, because it used “random or sequential number generation.” The court, however, did not certify the class pending additional discovery.