TCPA Case Law Review for December 2017

insideARM maintains a free TCPA resources page to provide a destination for timely and topical information on the Telephone Consumer Protection Act of 1991 (“TCPA”) that is relevant to the ARM community. This page is generously supported by Neustar. 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, a link is provided. Case information is provided by the Bedard Law Group.

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The following are case highlights fromDecember 2017 that should be interesting to members of the ARM community.

James Linlor v. Five9, Inc., et al

The issue: vicarious liability

The gist: In this case plaintiff Linlor alleges that Five9, a technology vendor, is vicariously liable for violating the TCPA when its client, Futero, Inc., sent text messages without consent, using an automatic telephone dialing system. However, plaintiff did not allege the existence of an agency relationship between Five9 and Futero. Court noted that, as established by United States v. Bonds, 608 F.3d 495, 506 (9th Cir. 2010) “to form an agency relationship, both the principal and agent must manifest assent to the principal’s right to control the agent.”

The decision points out that, "Agency means more than mere passive permission; it involves request, instruction, or command. Plaintiff does not allege that Five9 directed or supervised the manner and means of the text message campaign conducted by Futero or unnamed defendants. He does not allege that Five9 created or developed the content of the text messages, nor that Five9 played any role in sending the text messages beyond provisioning the inbound toll-free number used by Futero or unnamed defendants. Plaintiff merely alleges that Five9 provided a toll-free number with specifications permitting replies to the text messages and saving caller and statistical data. In other words, Plaintiff alleges that Five9 controlled the manner and means of the specifications of the toll-free phone number provided to Futero, not the manner and means of the substantive content of the text messages. This is insufficient to allege that Five9 requested, instructed, or commanded that Futero or unnamed defendants send out the text messages alleged to violate the TCPA. Thus, Plaintiff has not alleged Five9 had any control over Futero or the unnamed defendants for sending the text messages, nor that they acted in any way on Five9’s behalf. Because Plaintiff fails to allege an agency relationship, he also fails to allege that Five9 had express or actual authority over the entity that sent the alleged text messages." 

Since ratification of actions requires an agency relationship, and the plaintiff failed to allege an agency relationship, he also failed to establish that Five9 had express or actual authority over the entity that sent the alleged text messages. The court granted Five9’s Motion to Dismiss plaintiff’s Second Amended Complaint and dismissed plaintiff’s claims against defendant Five9, Inc.

Sidney Naiman v. TranzVia, LLC

The issue: vicarious liability

The gist: In another vicarious liability case, plaintiff asserts that he had never been a customer of TranzVia, a provider of payment technologies, and that he did not give consent to receive pre-recorded calls. He further claimed that the calls invaded his privacy and were "annoying" and "harassing." He did not allege that the pre-recorded calls were from TranzVia, but rather that the call to his cell phone was from "Rose's office." Nevertheless, he alleges, TranzVia was “legally responsible” for ensuring that Rose complied with the TCPA, even if TranzVia did not itself make the calls.

Tranzvia sought an order dismissing the complaint for the plaintiff’s failure to state a claim and for lack of personal jurisdiction. TranzVia argued that no facts established its liability for any calls made by Rose, under an agency theory or otherwise. Further, no facts showed that the court had general personal jurisdiction over TranzVia, nor any specific personal jurisdiction, because the only alleged violations of the TCPA were committed by Rose, not TranzVia. And, TranzVia adds, even if the court accepted plaintiff's agency theory, there are no facts showing the court has personal jurisdiction over Rose (who was not named as a defendant). The court agreed, and granted TranzVia’s motion to dismiss.

Billy Ginwright v. Exeter Finance Corp.

The issue: class certification

The gist: Plaintiff claims he had never given consent for Exeter (an auto finance company that buys and services retail installments from dealers around the country and services those accounts) to call his cell number, although he provided his cellphone number on his credit application at the dealership where he purchased his vehicle. Plaintiff’s motion to certify a class action was denied, with the court having found that commonality and predominance were absent from the class. The court opined that the issue of whether or not Exeter obtained (and maintained) consent to place the calls “would differ on a case-by-case basis.”

Exeter filed a motion for summary judgment regarding plaintiff’s individual TCPA claim, arguing that undisputed evidence established that plaintiff had granted prior express consent to receive calls from Exeter. The court agreed that “Exeter clearly received Ginwright’s prior express consent to call his cell phone about his debt” because plaintiff had provided the phone number on his credit application. Further, the court rejected the contention that plaintiff needed to specifically consent to autodialed calls. However, as for whether plaintiff ever revoked consent, the court concluded that “the record does not establish definitively whether or when such revocation took place,” and so declined to grant summary judgment due to disputed facts. Still, the ruling in favor of the defendant is a victory for auto lenders and other consumer creditors. 

For additional insight, read this article by Eric Troutman on insideARM.

Rodriguez v. Student Assistance Corp. and Navient Solutions, LLC F/K/A Navient Solutions, Inc.

The issue: revocation of consent

The gist: In a coup for Navient, the court granted summary judgment in the company's favor, pushing aside allegations that plaintiff Rodriguez had “repeatedly” asked for automated calls to her cell phone to stop. These revocation efforts were considered meaningless because plaintiff was a member of a Sallie Mae (Navient was formerly known as Sallie Mae) settlement. By failing to opt out of the “class consent” clause in that case, no subsequent revocation of consent would be valid.  

The judge in Rodriguez reasoned that Sallie Mae class members had received consideration for the “class consent” clause by being offered the opportunity to make a claim against the settlement fund, even if they never benefited from that fund. This essentially meant that the 8,000,000 unnamed class members in the Sallie Mae agreement irrevocably consented to receive future calls from Navient merely by virtue of their election not to opt out of it.

Viggiano v. Kohl’s Department Stores, Inc.

The issue: revocation of consent

The gist: A New Jersey Court sniffed out another contrived revocation of consent claim. In this case, plaintiff alleges that she had revoked her consent to be contacted by texting messages such as, “I’ve changed my mind and don’t want to receive these anymore,” “Please do not send any further messages,” and “I don’t want these message anymore. This is your last warning!” The court found that by accepting the Terms and Conditions of Kohl’s’ mobile sales alerts program, she agreed that she would use a more conventional method for revoking consent. Acceptable opt-out commands were made clear: “To stop receiving future Text Messages from Kohl’s pursuant to the Kohl’s Mobile Sales Alerts Program, you can text any of the following commands to 56457: STOP, CANCEL, QUIT, UNSUBSCRIBE, END.”

After each one of plaintiff’s long text messages, she received an automated reply that stated: “Sorry we don’t understand that request! Text SAVE to join mobile alerts. . . Reply HELP for help, STOP to cancel.” She did not use any of the simple commands that she had agreed to use to withdraw her consent. The court found it unreasonable for plaintiff to use “sentence-long messages.” The court went on to infer that her actions had been not only unreasonable but also intentional.

For additional insight on this case, read this article by Eric Troutman on insideARM.