Pub. 11 2020 Issue 3

www.wvbankers.org 24 West Virginia Banker O n June 3, 2020, the Ninth Circuit Court of Appeals dealt a blow to callers governed by the Telephone Consumer Protection Act (“TCPA”), which exempts callers from liability for automatic telephone dialing sys- tem-generated (“ATDS”) calls if the calls are made with “prior express consent of the called party.” In N.L. v. Credit One Bank, N.A., the Ninth Circuit joined other circuits in holding that a caller’s intent to call a customer who consented to calls will not exempt the caller from TCPA liability if the caller mis- takenly calls someone who did not consent. The Calls and the Lawsuit In 2014, D.V., a Credit One customer, gave Credit One con- sent to call his cellphone. When D.V. fell behind on payments, Credit One’s collectors began making automated calls to the cellphone number that they had listed for D.V. However, that number had since been reassigned to Sandra Lemos, whose son was on her cellular service plan and who was using the cellphone with the number that previously belonged to D.V. Neither Lemos, nor her son, had consented to the calls. Well over 100 calls were made to the son’s number. On behalf of her son, Lemos sued Credit One and its collectors for violations of the TCPA, California’s Rosenthal Fair Debt Col- lection Practices Act, and for invasion of privacy. The collectors settled, but the claims against Credit One went to trial. At trial, the court instructed the jury that consent to re- ceive the calls given by the current subscriber or user of the called phone (in other words, Sandra Lemos or her son) was required, and consent of the intended recipient (D.V.) was irrelevant. The jury found for Credit One on the invasion of privacy claim. However, the jury found for Lemos’s son on his TCPA claim and Rosenthal claim. Credit One appealed to the Ninth Circuit and argued that it should not be liable under the TCPA because it had the con- sent of the party it intended to call. The court rejected Credit One’s “intended recipient” interpretation, relying heavily on the text of the TCPA and other sources. “Called Party” The court conducted a detailed analysis of the term “called party,” including looking to other parts of the TCPA, Another Federal Court Holds that Callers are Subject to TCPA Liability if They Intend to Make Automated Calls to a Consenting Customer, but Instead Call Someone Else By Wesley A. Shumway. Edited by Nicholas P. Mooney II, Spilman Thomas & Battle Sorry, Wrong Number: