November 2021 - Call Compliance News
A California court has denied a Telephone Consumer Protection Act (“TCPA”) defendant’s motion to bifurcate, i.e., divide discovery into individual and class phases. Kamrava v. Cenlar Capital Corp. The defendant argued that class discovery would be expensive and not needed if the class was not certified. The judge rejected that argument because it did not prove that class-wide discovery was unnecessarily expensive or time consuming and did not provide estimates of the expected costs to be incurred.
Comment: Discovery is one of the most expensive parts of a lawsuit, and if a plaintiff can subject defendant to that expense, especially on a class-wide basis, it is in a stronger position regardless of the merits of the plaintiff’s claim.
A California judge has rejected plaintiffs’ argument that they are entitled to review the source code of the dialer in a TCPA class action to determine if the dialer is an automatic telephone dialing system (“ATDS”). In re: Portfolio Recovery Associates, LLC. The judge ruled such discovery would be futile as the Supreme Court was clear that an ATDS is a system which uses a random or sequential number generator to produce numbers in Facebook v. Duguid.
Comment: Plaintiffs in this case were arguing that the Avaya dialer “stored” numbers randomly or sequentially, and the court found this argument to be futile regardless of whether the dialer stored numbers randomly or sequentially or not as that would not make the system and ATDS.
A California court has denied a motion for certification in a TCPA class action brought against Yelp alleging they were called on their residential phone number while the number was on the national “do-not-call” registry. Sapan v. Yelp, Inc. The court held that exemptions to the list, such as an established business relationship, express consent, or business-to-business calls, were an individualized question preventing class certification. The judge ruled plaintiff could not overcome this obstacle even after an expert proposed a “reverse append” method to identify class members.
Comment: The court ruled that whether an individual had an established business relationship with Yelp was an individualized inquiry. This is a very important ruling as many plaintiffs have argued that an established business relationship is a class-wide question. You should review plaintiff’s expert’s opinions on this topic, as it is not as easy a question as plaintiffs claim.
A Florida court has denied class certification in a case brought by a very prolific TCPA plaintiff. Johansen v. Bluegreen Vacations Unlimited, Inc. Plaintiff posed as a customer and confirmed false contact information. The defendant argued that this deceptive conduct made plaintiff an inadequate class representative and the court agreed.
Comment: Johansen claimed an income of more than $60,000 per year based on TCPA lawsuits since 2014. Now that he has been rejected as a class representative in two cases, e.g., Johansen v. National Gas & Electric, LLC. Plaintiffs’ attorneys might be less likely to take his case.
An Illinois judge has denied a defendant’s request to strike class action allegations in a case involving allegations of illegal prerecorded voicemails in violation of the TCPA. Wood v. Capital Vision Services, LLC. The judge rejected defendant’s healthcare and emergency purposes exemption arguments because it did not show that these exemptions applied to any putative class member. The judge also denied defendant’s claim that the TCPA was unconstitutional at the time calls were made based on the Supreme Court case Barr v. Am. Ass’n of Political Consultants.
Comment: Most courts are holding that the TCPA was enforceable even during the time it contained unconstitutional language (the government debt exemption).
A Missouri court has found that an informational fax did not violate the TCPA. BPP v. CaremarkPCS Health, LLC. The fax informed doctors about changes in terms of patients’ prescription coverage and supply limits and did not advertise commercial availability or quality of services. The court therefore granted defendants motion for summary judgment.
A New Jersey court reversed a judgment won by Diana Mey, one of the most prolific pro se plaintiffs against a seller of septic products she alleged violated the TCPA. Mey v. Environmental Safety International, Inc. Mey won a judgment in West Virginia, then sought to enforce in New Jersey, but the appeals court in New Jersey ruled that the New Jersey trial court had not adequately reviewed whether defendants had been properly served in the West Virginia action, and therefore reversed the judgment.
A New York court has granted a defendant’s motion to arbitrate an individual claim in a significant victory. Costa v. Roman Health Ventures, Inc. Plaintiff argued that he should be able to arbitrate on a class-wide basis even though the agreement stated that all disputes would be resolved through “individual arbitration.”
Comment: A good arbitration clause can be a key factor in avoiding class action lawsuits and you should review your terms and conditions to ensure your arbitration clause is strong and binding.
New York Governor Kathy Hochul signed two bills into law which aim to prevent illegal robocalls. The first, (SB 6267) requires telecommunications companies to block robocalls from designated numbers. The second, (SB 4281) requires voice service providers to implement STIR/SHAKEN caller identification framework.
Comment: These rules appear to duplicate federal restrictions.
A bill is progressing through the Ohio Senate (SB 54) which would make violation of federal telemarketing law a violation of state law and prohibit voice service providers or text service providers from assisting any entity violating the TCPA or Telemarketing Sales Rule. The state law provides for an additional penalty of $1,500 for each violation of federal law.
A Pennsylvania court has dismissed a claim brought against the National Republican Senatorial Committee, holding that its texts were not sent with an ATDS. Camunas v. National Republican Senatorial Committee. The court also ruled that political fundraising texts were not subject to the national “do-not-call” list.
Comment: Many plaintiffs are arguing that the “do-not-call” list applies more broadly than just to business-to-consumer sales calls. Offers to purchase something from the recipient and fundraising donation calls are not subject to the national “do-not-call” list because they are not sales calls or advertising offers to the consumer.
A Pennsylvania court has refused to dismiss a TCPA and FDCPA claim brought against a collector of medical debts. Huber v. Simon’s Agency, Inc. The debt collector argued that the consumer revoked consent for some but not all the debts she owed, but the court disagreed and held revocation of express consent was a question of fact and not appropriate for summary judgment.
Comment: Under the TCPA, consent is only required for debt collection calls if they are prerecorded or dialed with an ATDS. It does not appear defense attorneys argued that the cell phone provision of the TCPA doesn’t apply at all because they did not use an ATDS or prerecorded voice. Most systems are not an ATDS under the new Supreme Court ruling in Facebook v. Duguid.
A Pennsylvania court has denied a TCPA plaintiff’s claim for “intentional infliction of emotional distress” caused by telephone calls while he was on the “do-not-call” list. Schweitzer v. Direct Energy, LP. The judge allowed his TCPA claim to continue to trial on the issue of fact whether unanswered calls were disconnected prior to 15 seconds or four rings.
Comment: First, plaintiffs will often lump in additional arguments for damages, like intentional infliction of emotional distress, trespass, etc. These claims are usually worthless. Second, this defendant could easily avoid the TCPA claim which did survive summary judgment by proper programming of its dialer to meet the technical restrictions in the TCPA, such as curfew, caller ID, and disconnect times.