Earlier this summer, in Frank v. Receivables Performance Management, LLC ("RPM"), a judge for the United States District Court for the District of New Jersey issued a useful decision for defendants, dismissing most of the claims in Plaintiff's Telephone Consumer Protection Act ("TCPA") lawsuit. Plaintiff sued RPM for allegedly calling him numerous times without his consent. In his TCPA lawsuit, Plaintiff alleged that these unsolicited telemarketing calls violated the TCPA because they were delivered by an automatic telephone dialing system ("ATDS") and utilized an artificial or prerecorded voice. As our readers are aware, the TCPA is a federal statute that restricts certain types of telemarketing communications. Every day, numerous lawsuits under the TCPA and/or its state analogs are filed across the country. The Frank decision is notable because it highlights the importance of being proactive if the underlying facts are favorable to the defendant in a TCPA lawsuit.
Facts Alleged in the Frank TCPA Lawsuit
RPM is a Washington-based company that manages accounts receivable for its clients. Plaintiff's TCPA lawsuit alleges that, over the course of numerous months, he received approximately 30 calls per month promoting RPM's services. Plaintiff alleges that RPM placed the subject telemarketing calls using an "automated system" for the selection or dialing of telephone numbers and that the calls utilized artificial or prerecorded voice. Plaintiff also claimed that he never provided his prior express consent to receive these calls. As our readers are aware, these allegations are contained in many TCPA litigation complaints, and are standard recitations of the actionable portions of the statutory language.
Plaintiff claimed that he was owed $500 in TCPA damages for each call that RPM placed. RPM, in turn, filed a Motion for Summary Judgment ("MSJ"), claiming that Plaintiff's TCPA lawsuit should be dismissed.
The Frank Decision
After considering the arguments of the parties, the Court ruled largely in favor of RPM, dismissing the majority of Plaintiff's claims for several reasons:
- In its MSJ, RPM made clear that its dialing system did not constitute an ATDS because it did not utilize a random or sequential number generator to produce or store telephone numbers. In his opposition to RPM's MSJ, Plaintiff abandoned his ATDS claim, but claimed that the subject calls utilized artificial or prerecorded voice. In evaluating this claim, the Court reviewed RPM's call records and authenticating declaration, which indicated that most of the alleged calls were disconnected when an answering machine was detected. Thus, Plaintiff could not prove that any calls containing artificial or prerecorded voice were actually delivered to his phone.
- The Court also examined the call records and RPM's authenticating declaration and determined that a significant portion of the calls ended when the call was answered by Plaintiff's voicemail and the agent decided not to leave a message.
To attain summary judgment, a movant must "show that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A fact is only "material" for purposes of a summary judgment motion if a dispute over that fact "might affect the outcome of the suit under the governing law." A dispute about a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Because RPM submitted an MSJ supported with both clear records and authenticating declarations, it was able to convince the Court that Plaintiff could not genuinely dispute that, on almost every call, neither an artificial nor prerecorded voice was delivered. However, the Court did deem five calls (for which RPM's records and declarations did not offer a disposition) to be potentially actionable. Notwithstanding this fact, this was a major victory for RPM, as the original TCPA lawsuit claimed that approximately 250 calls violated the TCPA.
Hire Experienced Attorneys to Carefully Examine TCPA Complaints
Numerous TCPA complaints are filed every day. The Franks ruling serves as a reminder that favorable facts, utilized in an aggressive manner, can save defendants significant time and expenditure. At the outset of any TCPA-related litigation, Plaintiffs' claims need to be carefully scrutinized and picked apart using the results of a detailed investigation into the underlying facts. Moving for summary judgment is just one of many ways to aggressively advocate for your client. In fact, avenues towards resolution should be evaluated at every stage of the proceedings. To do this, businesses should hire experienced TCPA attorneys who stay up to date with constantly evolving case law and regulatory changes. Seasoned TCPA attorneys can help to: 1) ensure telemarketing law compliance; and 2) explore all avenues to a successful litigation defense.
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