Well here’s a breath of fresh air.
It seems like everyday I have something grim or unpleasant to report about the TCPA. As every TCPAWorld reader knows the Plaintiff’s bar has weaponized the federal government’s crown jewel response to the robocall epidemic into a “sue first and ask questions later” cashcow. Indeed, so many million dollar fee awards have been handed down under the TCPA that a former FCC staffer once called it “Total Cash For Plaintiff’s Attorneys.”
That’s why today’s news is so nice.
Now I don’t want to oversell this. The ruling at issue was hardly surprising–a summary judgment order obtained against a lawyerless Plaintiff who didn’t even show up to oppose it. But still, good news is good news.
So in an interesting case out of Ohio a court yesterday held that consent provided on a bank’s signature card constitutes a valid consent disclosure and I think that may be a first in the nation result. The Court also made a nice remark about the intended limits of the TCPA.
In Madej v JP Morgan Chase, 2022 WL 1987364 (N.D. Oh. June 6, 2022) the Court considered Chase’s unopposed summary judgment motion. (Again, the Plaintiff lacked a lawyer and didn’t show up to defend against the motion Chase brought, which makes it pretty likely he was going to lose.)
The Court found Chase had consent for two reasons.
First, since the calls at issue were informational, the plaintiff was deemed to have consented by merely providing his number to Chase:
The Sixth Circuit has conclusively held—at least twice—that when consent to be called is given regarding an account upon which a debt is owed, the calling party is permitted to use autodialing technology and/or prerecorded messages for calls placed to both land lines and wireless numbers.
Second–and more interestingly, at least to me–the Court held that a signature card consent was valid:
The Personal Signature Card, which is identified in the Galinsky Declaration and attached thereto, includes the following statement:
When you give us your mobile number, we have your permission to contact you at that number about all your Chase or J.P. Morgan accounts. Your consent allows us to use text messaging, artificial or prerecorded voice messages and automatic dialing technology for informational and account service calls, but not for telemarketing or sales calls. It may include contact from companies working on our behalf to service your accounts. Message and data rates may apply. You may contact us anytime to change these preferences.
Notice, of course, that the consent obtained here was INFORMATIONAL consent and NOT express written consent required for telemarketing. The Court confirmed “the evidence before the Court establishes that Defendant’s calls were placed to Plaintiff in relation to a debt owed on the account for which the telephone number was provided.”
But now the really good stuff, the Court holds:
[Companies] may make “debt-collection calls targeted [to] a list of debtors” because the TCPA is not intended to stop a [company] from calling its customers, but rather to stop telemarketers from making random, sequentially generated “robocalls” to consumers who do not wish to receive them.… In the same way that a bank may call its customer at a number the customer provided to inform him of possible fraudulent activity on his account, so too may a bank call its customer at that same number to notify him of, and attempt to rectify, a debt created by the customer’s negative account balance (provided that the consumer’s consent to call the number has not been revoked).
It really shouldn’t be news when a court properly identifies the scope of a statute–but these days it certainly is. Per usual I must caution that most courts do not adopt so narrow a view of the statute. So always obtain counsel before beginning any new consumer outreach campaign.