As TCPA becomes more advanced recently with issues like Berman and Javier popping up, we still need to keep in mind the basics.
Don’t call skip trace numbers using an ATDS—nothing more basic that that.
The conduct—which famously got Rash Curtis and Associate into to much trouble—is almost universally avoided by collectors these days.
However, in Swanson v. National Credit Services, C19-1504-RSL (W.D. Wash. 05/31/2022) the Defendant is accused of doing just that—and I think I know why, but we’ll get to that in a second.
First, the important ruling here—the Court CERTIFIED a nationwide class action of everyone that the Defendant called using the same equipment it used to call the Plaintiff, where the source of the number was the same as Plaintiff’s. Interestingly, the Defendant argued it actually received plaintiff’s number from multiple sources—but the Court “clarified” the class only applied to individuals who were skip traced. (Which is why it is SO IMPORTANT to challenge the class definition at the pleadings stage folks—don’t let the Plaintiff hide the ball like this!)
With the class limited to skip traced individuals the Court had little trouble sprinting through the Rule 23 review. Everyone in the class would be equal on consent—that’s always the biggest issue on predominance under Rule 23(b)(3)—and Plaintiff is typical of class members who received skip traced calls, even though he also received non-skip traced calls, apparently. (That’s an odd piece of the decision, and probably Defendant’s best chance at challenging this thing moving forward.) So case certified.
The decision impacts “at least 3,308” accounts but it is unclear how many calls each class member received. Let’s assume 10 calls each—pretty low—that puts Defendant’s minimum exposure at $16.6MM. Eesh.
But let’s zoom out.
How did this happen to begin with? What self-respecting collection company is still using an ATDS to call skip traced numbers these days?
The answer—I suspect—lies with the fact that this was all federally-backed debt. As TCPAWorld.com readers know, calls to collect on such debt were categorically exempted from the TCPA. That is, until the Supreme Court ruled in AAPC that the exemption was unconstitutional. So NCS likely made the calls at a time when the calls were perfectly legal—only to see the rug ripped out from under it in oh-so-constitutional fashion.
AAPC is a real mess of a decision as the Czar has pointed out several times. It looks like we’re still seeing the fall out two years later.
We’ll keep an eye on this.