Plaintiffs win a String of Victories in the TCPA war

The explosion of class action lawsuits filed against businesses under the Telephone Consumer Protection Act (TCPA) bears comparison a bitter and bloody war, complete with brutal battles resulting in glorious victories and shattering defeats.  

[heading]The Illinois Front[/heading]

Three recent skirmishes in Illinois resulted in victories for the Plaintiffs.  One ruling certified classes of almost 1 million consumers who received automated phone calls, even though the defendants’ records alone were not sufficient to identify the class members.  The same judge also refused to dismiss another case involving automated calls, even though the plaintiff admitted that he gave his cellular phone number to the defendant.

In the first case, Birchmeier v. Caribbean Cruise Line, Inc., Judge Matthew F. Kennelly certified two classes – with a combined total membership of almost 1 million consumers – who had received automated calls in alleged violation of the TCPA.  Plaintiffs initially indicated that they had received from defendants a list of almost 175,000 phone numbers to which automated calls had “unquestionably” been made.  At oral argument on class certification, defendants’ counsel conceded that the class members associated with those numbers were ascertainable, despite the fact that the defendant’s records could not identify them.

In the second case, Kolinek v. Walgreen Co., the plaintiff alleged a TCPA violation because he received automated calls to his cellular phone prompting him to refill a prescription.  Judge Kennelly initially dismissed the case because plaintiff had provided his cellular phone number to the defendant, which the defendant argued constituted “prior express consent.”  The judge subsequently reconsidered that decision in light of a March 2014 ruling from the Federal Communications Commission (FCC) that made it clear that “turning over one’s wireless number for the purposes of joining one particular private messaging group did not amount to consent for communications relating to something other than that particular group.”  Thus, while providing a cellular number may constitute “prior express consent” under the TCPA, “the scope of a consumer’s consent depends on its context and the purpose for which it is given.  Consent for one purpose does not equate to consent for all purposes.”  Because plaintiff alleged that he had only provided his number for “‘verification purposes.’ … If that is what happened, it does not amount to consent to automated calls reminding him to refill his prescription.”  Accordingly, Judge Kennelly ruled that dismissal of the case under the TCPA’s “prior express consent” exception was not warranted.

In yet another decision in the same case, Judge Kennelly ruled that dismissal was not warranted under the TCPA’s “emergency purposes” exception either.  While FCC regulations define “emergency purposes” to mean “calls made necessary in any situation affecting the health and safety of consumers,” 47 C.F.R. § 64.1200(f)(4), the FCC has not read that exception to cover calls to consumers about prescriptions or refills.

Although plaintiff’s attorneys will doubtless find them encouraging, these victories amount to little more than limited engagements, as they are very fact specific and contradicted by court rulings in other jurisdictions, which have ruled that  providing a cellular number to a company constitutes consent to receive calls on that number.

[heading]What’s (not) in Your Wallet: The Battle of Capital One[/heading]

Another recent battle resulted in a massive victory for plaintiffs in a decisive and strategic battle, which left the battlefield strewn with the twisted, bloody corpses of the vanquished defendants.    Capital One Financial Corp. (“Capital One”) and three collection agencies have agreed to pay one of the largest settlement amounts in history — $75.5 million — to end a consolidated TCPA class action lawsuit alleging that the companies used an automated dialer to call customers’ cellphones without consent.

The settlement will provide between $20 and $40 to each member of the class of roughly 21 million people who received a call from Capital One’s dialers to a cellphone from an automatic telephone dialing system with an attempt to collect on a credit card debt from January 2008 to June 2014 and those who received calls from participating vendors from February 2009 to June 2014.  

While nothing short of a massacre for Capital One, up to 30 percent of the settlement amount (about $22.5 million) will be awarded to the consumers’ attorneys, and each of the five lead plaintiffs each will receive no more than $5,000.

Companies should keep in mind that these battles will not necessarily lead to plaintiffs winning the war.  Remember, General Lee’s Army of Northern Virginia seemed virtually unbeatable during the dark early years of the civil war.   And then came Gettysburg.    


Author: Seth Heyman
Seth D. Heyman is a California attorney with extensive experience in advertising and marketing law, corporate law, contracts, governmental regulations, international business, and Internet law. He has counseled numerous successful companies, both public and private, and was responsible for regulatory compliance, contract management, corporate governance, and HR best practices for multiple organizations in many diverse industries, including marketing, telecommunications, energy, and technology development. He offers insight and guidance on federal and state direct mail, TV, radio, telemarketing, and Internet marketing laws, as well as online promotions, Internet privacy, data protection regulations, and similar matters.
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