So What if You Didn't Touch That Dial? Avoiding Liability under the TCPA

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1 So What if You Didn't Touch That Dial? Avoiding Liability under the TCPA September 12, 2013 Alan S. Kaplinsky, Practice Leader Consumer Financial Services Martin C. Bryce, Jr. Consumer Financial Services Mark J. Furletti Consumer Financial Services Copyright 2013 by Ballard Spahr LLP

2 Resources CFPB Monitor Subscribe to our ABA award-winning blog at E-Alerts Subscribe at (click subscribe and choose Consumer Financial Services as your area of interest). Mortgage Banking Update Subscribe at (click subscribe and choose Mortgage Banking as your area of interest). Questions? 3

3 Upcoming Webinars Totally Secure: Your Update on Cybersecurity October 1 AML Update October 8 CFPB Mortgage Servicing Exam Review October 17 Doing Business Electronically Will 'Fessing Up Give You Brownie Points with the CFPB TBD TBD Why the Outcome of the Mt. Holly Case May not Change Fair Lending TBD Supervision and Enforcement at the CFPB Digital Money: Mobile Wallets, Virtual Currency, and Other Emerging Payments TBD Dos and Don ts of Credit Card Advertising Dos and Don ts of Advertising Prepaid Cards and Deposits Military Lending Update FCRA Update Register for upcoming webinars at or by ing Request materials from past webinars by ing TBD TBD TBD TBD 4

4 Your Presenters Alan S. Kaplinsky Martin C. Bryce, Jr. Mark J. Furletti 5

5 Agenda Background on TCPA Regulatory developments, with focus on new FCC consent rules effective October 16, 2013 Case law developments 6

6 Overview of TCPA Enacted in 1991 Requires consent for certain types of calls Prohibits junk faxes Establishes federal Do Not Call list Grants FTC and FCC rulemaking authority (banks vs. non-banks) Imposes strict liability- $500/$1,500 per call/text, no cap 7

7 Consent Rules How the call is initiated - Autodialed, live agent - Prerecorded message (robo) call - Systematically-launched text messages How called number is ported - Wireless line - Wired line 8

8 Consent Rules (cont d) Purpose of call - Marketing - Non-marketing [CAUTION] Whether number is on DNC 9

9 Types of Consent PEC - Application for credit - Other PEWC Established business relationship 10

10 New FCC Rule Text to wireless line on DNC for marketing purpose - Now need PEC - On 10/16 need PEWC Autodialed call to non-dnc wireless number for marketing purpose - Now need PEC - On 10/16 need PEWC Text message to non-dnc wireless number for marketing purpose - Now need PEC - On 10/16 need PEWC 11

11 Thorny Issues Can you get PEWC over phone? Is ESIGN implicated? Evidence of consent Revocation Re-ported numbers What's an ATDS? 12

12 Predictive Dialers Automatic telephone dialing systems (ATDS) equipment which as the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator and (B) to dial such numbers Section 227(a)(1). Predictive dialers covered as long as the equipment has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9 th Cir. 2009). 13

13 Consent Caller must be covered by authorization - Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009). Authorization must be explicit, not implicit Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL S.D.Fla. May 08, 2013); Edeh v. Midland Credit Management, Inc., 2010 WL (D. Minn. Sept. 29, 2010) (requiring: I give you permission to use an automatic telephone dialing system to call my cellular phone. ). Number called must be number listed on application Carnes v. IndyMac Mortgage Services, 2010 WL (D. Minn. Dec. 17, 2010). 14

14 Consent (cont d) Person who consented must have had authority to do so Gutierrez v. Barclays Group, 2011 WL (S.D. Cal. Feb. 9, 2011). Separate consent needed for new cell phone number Vance v. Bureau of Collection Recovery, LLC, 2011 WL (N.D. Ill. Mar. 11, 2011). Number need not have been provided at time of account opening Moore v. Firstsource Advantage, LLC, 2011 WL (W.D.N.Y. Sept. 15, 2011). 15

15 Consent (cont d) Work order with phone number, by itself, not sufficient to show consent, absent indication that separate 20-page subscriber agreement was provided to recipient of call Lee v. Credit Management, LP, 2012 WL (S.D. Tex. Jan. 13, 2012). Numbers provided on invoices may not evidence express consent because recipients of calls many not have been aware that they had provided their telephone numbers in connection with an oil change that they received In re Jiffy Lube International, Inc. Text Spam Litigation, 2012 WL (S.D. Cal. Mar. 9, 2012). 16

16 May Consent Be Revoked? No: Saunders v. NCO Fin. Sys., Inc., 910 F. Supp. 2d 464, 468 (E.D.N.Y. 2012); Kenny v. Mercantile Adjustment Bureau, LLC, No. 10-cv-1010, 2013 U.S. Dist. LEXIS 62415, at *18-20 (W.D.N.Y. May 1, 2013). Yes: Gager v. Dell Fin. Servs., LLC, No , 2013 U.S. App. LEXIS (3d Cir. Aug. 22, 2013). 17

17 If It Can Be Revoked, How? By telephone call - Osorio v. State Farm Bank, F.S.B., 859 F.Supp.2d 1326 (S.D.Fla. 2012) (unsuccessful); Starkey v. Firstsource Advantage, LLC, 2010 WL (W.D.N.Y. Mar. 11, 2010) (unsuccessful); Cunningham v. Credit Management, L.P., 2010 WL (N.D. Tex. Aug. 30, 2010) (unsuccessful). By letter sent by certified mail Sengenberger v. Credit Control Services, Inc., 2010 WL (N.D. Ill. May 5, 2010) and 2010 WL (N.D. Ill. June 17, 2010) (successful). 18

18 If It Can Be Revoked, How? (cont d) By text message and by telephone call Gutierrez v. Barclays Group, 2011 WL (S.D. Cal. Feb. 9, 2011) (both successful). By telephone call Adamcik v. Credit Control Services, Inc., 832 F. Supp. 2d 744 (W.D. Tex. 2011) (successful, rejecting Starkey). By text message Ryabyshchuk v. Citibank (South Dakota), N.A., 2011 WL (S.D. Cal. Nov. 28, 2011) (allegation sufficient to defeat motion to dismiss in case where recipient of text message alleged that second message confirming opt-out likewise violated the TCPA). 19

19 Unintended Recipient? Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (rejecting unintended recipient argument: called party in 227(b)(1) means the person subscribing to the called number at the time the call is made). Watson v. NCO Group, 462 F. Supp. 2d 641 (E.D. Pa. 2006) (new owner of telephone number stated claim). Cellco Partnership v. Dealers Warranty, LLC, 2010 WL (D.N.J. Oct. 5, 2010) (equating called party with intended recipient of the call). Leyse v. Bank of America, 2010 WL , *4 (S.D.N.Y. Jun.14, 2010) (roommate could not state claim). 20

20 To Make Any Call or Initiate Any Call Unanswered Calls Section 227(a) does not define call or make a call or initiate a call nor do the FCC rules implementing the Telephone Consumer Protection Act. Voic messages on cell phone Bianchi v. Bronson & Migliaccio, LLP, 2010 WL (S.D. Fla. Mar. 12, 2010) and 2011WL (S.D. Fla. Feb. 2, 2011) (caller held liable). Unanswered calls to and voic messages left on cell phone Castro v. Green Tree Serv., 2013 WL (S.D.N.Y. Aug. 14, 2013) (unanswered calls and voic s); Fillichio v. M.R.S. Associates, Inc., 2010 WL (S.D. Fla. Oct. 19, 2010) (caller held liable). 21

21 Facsimiles Prohibits unsolicited sending of advertisement to a fax machine unless certain statutory exceptions apply. Section 227(b)(1)(C)(iii) requires opt-out notice. Courts have concluded TCPA allows private right of action for failure to include. See, e.g., Bais Yaakov of Spring Valley v. Alloy, Inc., 2013 WL (S.D.N.Y. March 28, 2013). Opt-out notice required for solicited faxes. Nack v. Walburg, 713 F.3d 680 (8th Cir. 2013) (upholding FCC regulation requiring opt-out notice on solicited faxes); Alloy Inc., supra. 22

22 Defending TCPA Claims The Usual Rules Governing Class Certification Apply. - A class action under the TCPA must meet all of the requirements of Rule 23. See, e.g., CE Design v. King Architectural Metals, Inc., 637 F.3d 721 (7th Cir. 2011) (reversing district court's certification of TCPA class as there were serious questions concerning the adequacy of the class representative); Local Baking Products, Inc., 23 A.3d 469 (N.J. Super. App. Div. 2011) (declining to certify TCPA class finding class action not superior to individual action), certif. denied, 35 A.3d 679 (NJ 2011). 23

23 Defending TCPA Claims (cont d) Individualized Issues Prevent Certification. - Determining whether there was prior express consent is an individualized issue. See, e.g., Jamison v. First Credit Services, Inc., 2013 WL (N.D. Ill. July 29, 2013) ( the lesson that could be extracted from these cases is that issues of individualized consent predominate when a defendant sets forth specific evidence showing a significant percentage of the putative class consented to receiving calls on their wireless phone ); Vigus v. Southern Illinois Riverboat Casino Cruises, Inc., No , 2011 WL (S.D. Ill. March 11, 2011); Siding & Insulation Co. v. Combined Ins. Group, No , 2012 WL (N.D. Ohio Apr. 24, 2012). 24

24 Defending TCPA Claims (cont d) Issue Of Consent May Not Prevent Certification. - The existence or non-existence of consent may be subject to common proof in some circumstances. See, e.g., Meyer v. Portfolio Recovery Associates, LLC, 707 F.3d 1036 (9th Cir. 2012) (numbers obtained through skip tracing and no evidence of consent); Hinman v. M & M Rental Car Center, Inc., 545 F. Supp.2d 802 (N.D. Ill. 2008) (question of consent a common predominant issue where the defendant transmitted faxes to numbers on a leads list it had purchased where few recipients on the list were likely to have consented). 25

25 Defending TCPA Claims (cont d) Other TCPA Issues Regarding Class Certification - Not superior in light of availability of statutory damages considerably in excess of any real or sustained damages and availability of small claims courts. Local Baking Products, Inc., 23 A.3d at Reaching contrary result and certifying class. Reliable Money Order, Inc. v. McKnight Sales Co., No , 2012 WL (E.D. Wis. March 30, 2012) (citing cases). 26

26 Defending TCPA Claims (cont d) Damages - Under the TCPA, a plaintiff may recover either the actual monetary loss sustained as a result of the violation of the statute or receive $500 in damages for each such violation, whichever is greater. 47 U.S.C. 227(b)(3)(B). If the court finds that the defendant willfully or knowingly violated this subsection [ i.e., 47 U.S.C. 227(b) ] or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph. Id. 227(b)(3). 27

27 Defending TCPA Claims (cont d) Treble Damages - Some courts have held that a defendant must have sent the unsolicited communication knowing or having reason to know that such conduct was a violation of the TCPA. See, e.g., Adamcik v. Credit Control Servs., No , 2011 WL , at *9 (W.D. Tex. Dec. 19, 2011); Manufacturers Auto Leasing, Inc. v. Autoflex Leasing, Inc., 139 S.W.3d 342, (Tex.Ct.App.2004). - Other courts have held that a defendant need only have willfully or knowingly sent the unsolicited communicationi.e., knowledge of the law is not necessary. See, e.g., Stewart v. Regent Asset Management Solutions, Inc., No , 2011 WL , at *6 (N.D. Ga. May 4, 2011); Charvat v. Ryan, 116 Ohio St.3d 394, 879 N.E.2d 765, (Ohio 2007). 28

28 Thank You Alan S. Kaplinsky, Practice Leader Consumer Financial Services Martin C. Bryce, Jr. Consumer Financial Services Mark J. Furletti Consumer Financial Services

29 Moderator Alan S. Kaplinsky Practice Leader of the Consumer Financial Services Group at Ballard Spahr Devotes his practice to counseling financial institutions with respect to bank regulatory and transactional matters and defending them in individual and class action lawsuits (including CFPB investigations and government enforcement matters) First President of the American College of Consumer Financial Services Lawyers Former Chair of the American Bar Association Committee on Consumer Financial Services of the Business Law Section Co-Chair of the Practising Law Institute's Annual Consumer Financial Services Institute, now on its 18th year Has been named as a tier one banking and consumer financial services lawyer in the 2006 through 2013 editions of Chambers USA Has been named in The Best Lawyers in America under financial services regulation law and banking and finance litigation from 2007 to 2013 Named the 2012 Philadelphia Lawyer of the Year for Litigation-Banking & Finance 30

30 Panelist Martin C. Bryce, Jr. Litigation Partner and a member of the Appellate, Consumer Class Action Litigation, Consumer Financial Services, and Mortgage Banking Groups Practice focuses on credit card-related litigation, arbitration, commercial law, class action defense, and mortgage-related litigation Has significant trial experience in both federal and state courts Has successfully handled appeals in the Third, Fourth, and Fifth Circuits, as well as in numerous state appeals courts, including those of California, Pennsylvania, New Jersey, Ohio, and Wisconsin 31

31 Panelist Mark J. Furletti Senior Associate in the Consumer Financial Services Group at Ballard Spahr Focuses on federal and state consumer lending and payments laws, including those that apply to payment cards, vehicle-secured loans, unsecured loans, and deposit products Counsels providers of consumer financial services, including banks, on regulatory compliance matters and has successfully represented such providers in class action litigation Recognized as a banking and finance associate to watch by Chambers USA in 2012 and 2013 Vice Chair of the American Bar Association s Electronic Financial Services Subcommittee,

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