Short but Painful: Caliber Home Loans Roughed Up in Brief Robocall TCPA Ruling

Most of the times a two page order is a good thing for Defendants. But when its not, it is generally a very bad thing—perhaps  an indication the Court thought the Defendant’s arguments bordered on frivolous

In Schick v. Caliber Home Loans, Case No. 20-cv-00617-VC, 2020 U.S. Dist. LEXIS 125639 (N.D. Cal. July 16, 2020) the Court rejected an impressive number of Caliber’s defenses in a TCPA Robocall suit in a mere two pages. Some pretty basic errors here folks. Let’s learn from it together.

First, the Court denied a stay request pending the outcome of Barr v. AAPC. Since that case was decided nearly two weeks ago now, however, one wonders why Caliber didn’t withdraw the request instead of making the court rule on the issue. No matter.

Second, the Court rejected Caliber’s vicarious liability defense concluding that the complaint sufficiently alleged it was responsible for calls made by “telemarketer” Driving Force Media. Notably, the Ninth Circuit is a “manner and means” control jurisdiction for agency purposes—meaning that  Defendant must actually control the injury-causing conduct (here, phone calls) and not just exercise general control over the quality or nature of services provided by a vendor. In that respect, but in few others, the Ninth Circuit’s case law actually favors TCPA defendants. But the Court flatly rejected Caliber’s challenge to the complaint. Worse yet, by raising the issue at the pleadings stage, rather than waiting for an evidentiary motion, Caliber may have ceded this critical issue to the Plaintiff on the merits (and certainly risked highlighting a common issue pre-certification.) Where have we seen that before?

But we’re only halfway through here. Third, the Court rejected Defendant’s motion to dismiss the ATDS allegations finding—as so so many courts in the Ninth Circuit have—that allegations of encountering a “click and pause” at the start of a call is plenty to allege ATDS usage. As we have previously written, there are very few circumstances when an ATDS pleadings challenge ought to be made in the Ninth Circuit given the low pleadings standard and the influence of Marks. But, you know, feel free to try it anyway.

Fourth, the Court rejected Defendant’s challenge to the DNC claim finding that the Plaintiff perfectly pleaded the use of a residential number that was registered on the national DNC list and the receipt of more than one unsolicited marketing call from Defendant within a 12 month period. I mean, that’s about all that needs to be pleaded folks.  Indeed, the Court made such short work of Caliber’s challenge to the DNC claim that it isn’t even clear what its arguments were.

Rulings like this remind me of why I started to begin with—to serve as a resource for the TCPA defense bar so that it is better equipped to make good arguments and not create bad caselaw that my clients have to live with. Oh well. At least its Friday.

Just two more work days until Monday.

Happy weekend TCPAWorld.



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