September 2021 - Call Compliance News
Eighth Circuit Court of Appeals
The Eighth Circuit Court of Appeals has ruled that arbitration clauses, even if contained in valid contracts, are waivable by either party if they fail to invoke them. In Sitzer v. National Association of Realtors, the defendants engaged in litigation for more than a year before moving for arbitration. The Eighth Circuit ruled their right to invoke arbitration had been waived implicitly by the defendants’ actions.
Comment: While not a TCPA case, arbitration clauses are very important with regard to the TCPA, and you should ensure that you include both good contract language and that you promptly invoke those clauses in the event of a lawsuit, probably in your first response to a complaint or you can lose those rights.
California has ruled that the “LiveVox 5.0 dialing system” is not an ATDS as that term is defined in the TCPA. Edwards v. Alorica, Inc. The court noted that the Supreme Court has ruled an ATDS “does not encompass devices that merely contact a cellular phone by text or call from ‘stored’ telephone numbers.” Because the plaintiff did not allege Alorica used a dialer which created her number randomly or sequentially, the court dismissed her claim.
Comment: Plaintiff alleged that “calls were made ‘automatically’ by a device that can ‘store’ numbers.” This is an attempt to eliminate the “random or sequential” language from the TCPA, and this court rejected this argument.
Another court has ruled that a plaintiff could not argue a dialer which generated a number to order “pre-existing phone numbers” was an ATDS. The court ruled the term “number generator” referred to “telephone number” not any number. Tehrani v. Joie de Vivre Hospitality.
A court noted that the defendant randomly made calls from a list of numbers but did not randomly or sequentially “generate” telephone numbers such that its system was not an ATDS and dismissed plaintiff’s claims on the pleadings. Franco v. Alorica, Inc.
A California bill will amend the state’s privacy law to specify that “personal information” includes genetic data that results from the analysis of a biological sample from an individual.
Comment: The bill is likely to be enacted. It has already passed several procedural votes.
A court has rejected a defense claim that it did not have jurisdiction over a purported TCPA class action alleging failure to honor individual “do-not-call” requests, failure to honor the national “do-not-call” list, and sending prerecorded messages without prior express consent. Adam v. CHW Group, Inc. Plaintiff received text and prerecorded messages claiming to be on behalf of “Choice Home Warranty”. The court held this was a sufficient allegation that CHW initiated these communications.
Comment: At this stage of litigation the court accepts all factual allegations in the complaint as true and draws reasonable inferences in favor of the plaintiff, so the defense had a very hard argument to make. The court did rule, however, that one of plaintiff’s class definitions was an improper “fail safe class”, but allowed plaintiff to amend the complaint. A “fail safe class” allows putative class members to seek remedy if the case wins, but not be bound by the decision if the plaintiff loses. You should carefully review class action allegations against you and not just assume plaintiff’s definition is proper under the standard.
Another court has ruled that the AAPC v. Barr decision that held the TCPA’s government debt-collection exemption is unconstitutional did not make the entire statute unenforceable during the time that exemption was still in place. Dobronski v. Keroles Enterprises, LLC.
A Nebraska court has ruled that a predictive dialer is not an ATDS as defined in the TCPA. Grome v. USAA Savings Bank. The defendant argued the system was not capable of generating telephone numbers and the court concluded this meant the system was not an ATDS.
Comment: Notably, USAA did not use a random or sequential number generator to determine the order in which to pick numbers to be called. We recommend you clearly establish and keep records of how your dialer picks numbers to be called from a list (e.g. time zone, most recent purchase, etc.) so that it is not subject to the argument that it randomly picks numbers to be called.
A New York case has considered the effect of AAPC v. Barr and whether the Supreme Court’s decision to sever the government debt-collection exemption was prospective or prospective and retrospective, i.e. could a debt collector be responsible under the TCPA for calls that were legal at the time under the exemption, but arguably illegal now that the exemption was severed. Roder v. Collection Bureau of the Hudson Valley, Inc. The court rejected defendant’s argument that the TCPA should not apply until the exemption was severed but noted “defendant is decidedly not a government debt collector.” Its conduct, if illegal, would not be subject to the exemption whether severed or not.
This case is one more argument that the TCPA could be enforced prior to the AAPC decision even though it was unconstitutional at the time.
An Ohio court has ruled that a system which could not store numbers using a random or sequential number generator was not an ATDS partially based on the expert opinion of Ken Sponsler. LaGuardia v. Designer Brands, Inc. The system was produced by Responsys. The court also rejected plaintiffs’ “do-not-call” registry claims because they provided their numbers to the defendant and made purchases from defendant.
Comment: You should carefully review your dialing or texting system to ensure it is not an ATDS and create a record of that review prior to any complaint or allegation of TCPA violation.
A Texas court has rejected defense arguments that plaintiff was not injured by a telephone call she received soliciting sales of a healthcare warning device. Thomas v. Life Protect 24/7, Inc. The court held “multiple unwanted phone calls and prerecorded messages” constituted a concrete injury. The court also ruled that the fact that the AAPC decision severed the government debt-collection exemption did not mean the TCPA was unenforceable during the time the government debt-collection exemption was still in the statute.
Comment: Most courts are ruling the TCPA was constitutional as a whole even though a part of it was unconstitutional until April 20, 2021.