TCPA NIGHTMARE: Court Grants $122k Summary Judgment Against Debt Collector for Using Noble Predictive Dialer to Contact Revoking Debtor– CEO Must Face Jury on Personal Liability
When it comes to the TCPA, assumptions don’t just make a donkey out of you and me—they can make YOU quite broke.
Consider the recent NIGHTMARE decision in Ramsey v. Receivables Performance Mgmt., LLC, Case No. 1:16-cv-1059, 2020 U.S. Dist. LEXIS 236094 (S.D. Oh. December 15, 2020). There a debt collector lost the case on summary judgment when it assumed (that was the testimony) it had consent anytime a creditor sent a file to it to work. When the debtor revoked consent to the creditor, however, the consent the collector assumed it had evaporated. Leaving the collector—and potentially its CEO—on the hook for over $100k in statutory damages.
Here’s the story :
Plaintiff failed to pay for some stuff. He sends a letter to the creditor asking not to receive collection calls because—hey, he’s just not going to pay all right? Creditor sends account to debt collector to collect—apparently without advising collector that consent was revoked. Collector has a usual business practice of trusting creditor to provide numbers that have consent.
You see where this is going.
But before we get where this is going, we need to talk about ATDS issues. With the huge TCPA ATDS appeal in the Facebook matter pending we don’t get to talk about ATDS much lately because (thanks to us) every Defendant knows to stay ATDS cases pending the outcome of Facebook—especially in jurisdictions (like the Sixth Circuit) where a broad (likely errant) ATDS definition is applied. For reasons unknown—I didn’t check the docket to see whether Defendant tried to stay the case—the Ramsey decision slipped through to decision on the matter, even with Facebook pending. And it did not go well.
The Court held that the Defendant’s use of the Noble predictive dialer system qualified as the use of an ATDS under the Sixth Circuit’s articulation of the ATDS definition in Allan. It is critical to note, however, that it was Defendant’s hyper automated usage of Noble that triggered statutory coverage. Noble linked into a system of record called PICK operated by the collector. Because the PICK system AUTOMATICALLY chose accounts and passed phone numbers to be stored and dialed from Noble, without human intervention, the Court determined that an ATDS was used. In the Court’s words:
The only involvement a human had in the dialing of phone numbers was ‘[e]ssentially clicking a button to press play to have a list start.’ (Doc. 76 at 15, Page ID 1025.) This slight degree of human intervention is not enough to remove the dialer from the ambit of the statutory definition.”
The result here very likely would have been different if—for instance—human beings were involved in selecting accounts to be worked, created work cards or the like, and passed the files manually to the dialer for processing.
But that’s a different story.
This story is about a system that was fully automated and the Court found that there was simply no question of fact—an ATDS was used under Allan because the system did not have any meaningful human intervention built in.
The use of an ATDS to call the debtor’s cell phone would have been fine, of course, if the collector had express consent. And since a collector has consent anytime a creditor has consent under applicable FCC rulings—which are probably, but maybe not, still binding—the collector here was perfectly safe, it assumed. Unfortunately for the collector Ramsey had sent a letter to the creditor before the file transferred. But the creditor had—apparently—not informed the collector. So 245 calls were made that, well, shouldn’t have been.
Notice that the mistake here—if there was one—was likely on the part of the creditor –yet it is the collector who takes the fall because the collector made the calls. Unfair. But—like I tell my kids—that’s life.
Speaking of unfair, the CEO of the collector—a seemingly pleasant fellow named Howard George—may end up personally liable for the illegal calls here. This is true even though the collector thought it was acting lawfully. How is that possible? Well, in the first place, state of mind is irrelevant for TCPA purposes—you can think what you’re doing is legal all day long but that won’t save you. (Which is why you really really need good TCPA compliance counsel like, say, the Baron.) In the second place—I have repeatedly lamented—the TCPA allows for commonplace individual liability for corporate officers involved with overseeing TCPA compliance.
In Ramsey, for instance, the Court found that George “as RPM’s founder, owner, and highest-ranking officer [may have had] the final authority over RPM’s business operations and… was in charge of implementing TCPA procedures at RPM.”
In the Ramsey court’s view that’s enough for George to face the music—and a jury—on the issue of his personal involvement in the TCPA violations at issue.
So there you have it—a collector loses a TCPA case at summary judgment based upon calls it assumed were legal and its CEO will face trial on personal liability. At stake? At least $122,000.00 of his own personal cash.
We’ll keep you posted on this one.