In Odom v. ECA Mktg., No. 5:20-cv-00851-JGB-SHK (C.D. Cal. Aug. 20, 2020), the Central District of California (the "Court") permitted a claim for willful violation of the Telephone Consumer Protection Act ("TCPA") to go forward even though it is undisputed that the plaintiff received only a single marketing call.
The plaintiff, Ryan Odom, alleges ECA Marketing placed a single, unsolicited call to his cell phone and left a pre-recorded voice message advertising a book and video package, the "Power of Zero Fast Start Kit." He further asserts that ECA Marketing has a practice of making such calls and that other consumers have received the same pre-recorded message under the same or similar circumstances. Based on these allegations, Odom filed suit on behalf of himself and a purported nationwide class asserting claims for negligent and willful violations of TCPA.
ECA Marketing moved to dismiss the claim for a willful violation, arguing Odom does not allege that it called him multiple times or that it continued to call him after he objected to being contacted. Odom conceded that his individual claim is limited to a single call. He argued willfulness could be inferred based on the defendant's general practices. The Court agreed, holding, "The plausible inference that many consumers received identical automated telemarketing messages from Defendant could satisfy the standard for willfulness under the TCPA."
This case stands as a warning for companies engaging in telemarketing and other call campaigns. Even where only a single call is placed to an individual, the Court held that a finding of willfulness under the TCPA - and the corresponding potential for damages to be increased up to $1,500 per call - can be based on a business's overall calling practices and the fact that the same message was sent to numerous consumers.
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