The Sessions Firm is defense counsel in Teresa Soppet, et al. v. Enhanced Recovery Company, LLC, which is a national class action pending in the Northern District of Illinois. The plaintiffs asserted class claims under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, for autodialed calls to cell phones.
Several months ago, we were allowed a special appeal to the Seventh Circuit to attempt and fix an adverse summary judgment decision issued by the trial court. The trial court ruling related to the proper interpretation of the consent defense when a cell number is "recycled" and transferred from the debtor to an unrelated third party. The facts of the case are undisputed: the defendant had the debtors' consent to call the cell numbers; however, the plaintiffs were the subscribers of the cell numbers at the time of the defendant's autodialed calls.
Today, the Seventh Circuit rendered its opinion. In shortest summary, the Court ruled a debt collector needs the consent of the current subscriber of a cell number in order to autodial the number. A debt collector who has the debtor's consent to call his cell number is still liable under the TCPA if the number has been reassigned to someone else. The TCPA liability exists even when the debt collector unknowingly autodials a third party.
Using the "Sorcerer's Apprentice" analogy, the Seventh Circuit found that "drowning" the innocent third party with unfairly made autodialed cell calls, the TCPA has been violated-regardless of the historical consent to call the cell number. The Court concluded that the "called party" in the TCPA consent defense, § 227(b)(1)(A), "means the person subscribing to the called number at the time the call is made," as opposed to the intended recipient of the call.
This ruling only attaches liability to wrong cell numbers dialed by an autodialer and does not attach liability to wrong cell numbers manually dialed.
We anticipate this decision, and the parallel federal district court ruling in Lynn Breslow v. Wells Fargo Bank, N.A. handed down last month in Florida, will lead to more TCPA litigation. Now is the time to reassess how your company autodials cell phones. We will be holding a conference call on this matter very soon. Please do not hesitate to contact us if you have any questions.► Back to News & Resources