TCPA Case Law Review for May and June 2017

insideARM maintains a free TCPA resources page to provide the ARM community a destination for timely and topical information on the Telephone Consumer Protection Act of 1991 (“TCPA”). This page is generously supported by Neustar. See the page here or find it in our main navigation bar from any page on insideARM under Compliance Portals. 

The cornerstone of the page is a chart of significant TCPA cases. Click on the link in the chart for the complete text of the decision. Where insideARM has already published a story on the case, we provide a link. Case information and analysis is provided by the Bedard Law Group.

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Things have been a little busy at insideARM over the past two months. We did not publish an update to the TCPA Case Law chart in May. Luckily, things were fairly quiet in the TCPA world that month, but we are ready to catch up. 

The following are some of the TCPA cases published in the last 60 days that should be interesting to members of the ARM community. 

Reyes v. Lincoln Automotive 

The gist: This is probably one of the more important TCPCA cases in the past several years. The issue was the ability of a consumer to revoke consent to be called on a cell phone. The Second Circuit held that the consumer could not unilaterally revoke consent that was part of the bargained for agreement between the parties. The court relied on Black Letter contract law in making its decision. The insideARM story on this case may be found here. 

Kern v. VIP Travel Services 

The gist: This is a positive case for the ARM community and the defense bar.  The case involved the issue of vicarious liability for activity that may violate the TCPA.  The defendants were successful in having the case dismissed for failure to state a claim because the court found that Plaintiffs did not allege facts from which to infer an agency relationship.  

Zean v. Fairview Health Services 

The gist: The issue in this case involved “consent”.  The plaintiff brought this putative class action, alleging that after purchasing a medical device from Fairview he received numerous telemarketing calls and voicemail messages soliciting him to buy home medical supplies from the defendant. The court ruled that the plaintiff in the case had provided “prior express consent”. The defendant produced a business record of an agreement executed by the plaintiff which read “I understand Fairview may need to contact me in regard to my services and accounts. I give permission for Fairview and its approved agents to contact me by phone (including my cell phone). This may include the use of auto-dialers or pre-recorded messages.” 

Vanover v. NCO Financial Services, Inc.  

The gist: This is a positive decision for defense attorneys regarding the esoteric legal issue of “claim splitting.” The plaintiff filed two separate suits against the defendant. The first was in Florida state court and involved a TCPA claim. Over 1 year later the, plaintiff brought another suit in Florida state court against the same defendant, this time for claims under the TCPA, the FDCPA, and Florida Consumer Protection Statute. Both complaints involved the same medical debts.  The court ruled that the complaint should be dismissed for asserting claims which could and should have been presented in an earlier-filed complaint. 

Thank you to attorney David Kleber from the Bedard Law group for his coverage, review and analysis of these cases.