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David M. Gettings

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Dave Gettings is an attorney in the Financial Services Litigation practice, representing national and multinational clients in both federal and state court.

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On Friday, October 26th, from 2 – 3 pm ET, Troutman Sanders attorneys, David Anthony, Dave Gettings and Virginia Flynn will present a webinar that will help you make sense of the shifting TCPA landscape. It will focus on the different ways courts throughout the country have addressed the interpretation of an automatic telephone dialing system (“ATDS”) since ACA International, how courts have treated previously-binding orders from the Federal Communications Commission (“FCC”), and the different ways courts have handled motions to stay pending future guidance from the FCC. This webinar will help you attack current TCPA claims you may be facing and plan for TCPA claims you are trying to avoid.

Scheduling conflict? Register to receive the recording after the webinar. 

One hour of CLE credit is pending.

To register, click here.

If a consumer signs a contract with a creditor in which the consumer consents to be called, can he or she later revoke that consent if they simply change their mind?  In a significant decision under the Telephone Consumer Protection Act, a District Court in the Eleventh Circuit recently said they cannot.  A consumer cannot unilaterally modify the contract – and revoke consent to be called – when that consent was part of a bargained-for-exchange.

In Medley v. Dish Network, LLC, consumer plaintiff Linda Medley entered into an agreement with Dish Network in connection with her satellite service in which she agreed that Dish Network could “contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system … .”  Subsequently, in an effort to stop calls, Medley attempted to revoke her prior express consent by faxing her revocation to Dish.  When Dish’s calls to Medley did not cease, she sued the company for violation of the TCPA.

The TCPA prohibits any person from making calls to a cellular telephone using an artificial or prerecorded voice, or using an automatic telephone dialing system, unless the call is made for emergency purposes or with prior express consent of the called party.  In Medley, Dish claimed that the consumer could not revoke her contractual consent and, therefore, the calls to her were permissible.  Medley countered that the TCPA allowed her to revoke consent and that she did so by fax.  The battle lines were drawn.  Could a consumer revoke TCPA consent that was included in a bargained-for contract simply because she changed her mind about being called?

Although the Eleventh Circuit has not addressed this issue yet, the District Court followed a developing line of cases, beginning with the Second Circuit’s Reyes v. Lincoln Automotive Financial Services decision, holding that TCPA consent is not unilaterally revocable when it is contained in an express provision of a contract.  The Court agreed that “it is black-letter contract law that one party to an agreement cannot, without the other party’s consent, unilaterally modify the agreement once it has been executed.”  As a result, the Court found Medley’s revocation ineffectual and concluded that Dish did not violate the TCPA.

TCPA cases around the country are replete with examples of consumers attempting to revoke contractual consent – and racking up significant damages in the process.  The Medley decision puts a significant dent in the validity of that type of alleged revocation. 

 

Employers and consumer reporting agencies beware: a change to a commonly used form required by the Fair Credit Reporting Act (“FCRA”) becomes effective on September 21, 2018, and the price of non-compliance could be class action lawsuits.

On September 21, 2018, the Economic Growth, Regulatory Relief and Consumer Protection Act’s changes to the FCRA Summary of Rights form will take effect. The Act requires new language to be added to the form explaining a consumer’s right to obtain a security freeze.

While the Act specifically amends Section 1681c-1(c) of the FCRA, which is directed at consumer reporting agencies, the Act also requires the new language to be included “[a]t any time a consumer is required to receive a summary of rights required under section 609.”

How can a requirement under 609, which applies to consumer reporting agencies, create an obligation for users of consumer reports? Users are generally required to provide the FCRA Summary of Rights prior to taking any employment adverse action based upon the use of a consumer report. 15 U.S.C. § 1681b(b)(3)(A) requires that:

in using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall provide to the consumer to whom the report relates—

….

(ii) a description in writing of the rights of the consumer under this subchapter, as prescribed by the Bureau under section 1681g(c)(3) of this title.

Users of consumer reports should identify each situation in their pre-adverse action process where they provide an FCRA Summary of Rights form, so the new form can be substituted in a seamless way.

Likewise, entities that qualify as consumer reporting agencies will need to ensure their FCRA Summary of Rights form is updated. Consumer reporting agencies are required to provide the form at various times, including, for example, to consumers when making a file disclosure pursuant to 15 U.S.C. § 1681g(c)(2).

The new FCRA Summary of Rights form must include the following language:

Consumers Have The Right To Obtain A Security Freeze

You have a right to place a “security freeze” on your credit report, which will prohibit a consumer reporting agency from releasing information in your credit report without your express authorization. The security freeze is designed to prevent credit, loans, and services from being approved in your name without your consent. However, you should be aware that using a security freeze to take control over who gets access to the personal and financial information in your credit report may delay, interfere with, or prohibit the timely approval of any subsequent request or application you make regarding a new loan, credit, mortgage, or any other account involving the extensio of credit.

As an alternative to a security freeze, you have the right to place an initial or extended fraud alert on your credit file at no cost. An initial fraud alert is a 1-year alert that is placed on a consumer’s credit file. Upon seeing a fraud alert display on a consumer’s credit file, a business is required to take steps to verify the consumer’s identity before extending new credit. If you are a victim of identity theft, you are entitled to an extended fraud alert, which is a fraud alert lasting 7 years.

A security freeze does not apply to a person or entity, or its affiliates, or collection agencies acting on behalf of the person or entity, with which you have an existing account that requests information in your credit report for the purposes of reviewing or collecting the account. Reviewing the account includes activities related to account maintenance, monitoring, credit line increases, and account upgrades and enhancements.

The Federal Trade Commission (“FTC”) initially published the model Summary of Rights under 16 CFR Part 698, App. F. Starting July 21, 2011, the Consumer Financial Protection Bureau (“CFPB”) assumed responsibility for the Summary of Rights form. The FCRA requires the CFPB to actively publicize the availability of the summary of rights and “conspicuously post on its Internet website the availability of such summary of rights.” See 15 U.S.C. § 1681g(c)(1)(C)(i)-(ii). An official form is published on the CFPB website as Appendix K to Regulation V. However, as of this writing, the CFPB has not published a revised version of the official form with the new security freeze disclosure.

To minimize potential class-wide exposure, forms should be updated for use prior to September 21, 2018 to avoid any gaps in compliance with this new requirement. Improper use or non-use of the Summary of Rights form by users and consumer reporting agencies has been alleged as a basis for multiple class actions, so the risk of exposure from non-compliance is not hypothetical. Companies should seek advice from their legal counsel to ensure their form complies with the new requirement and is in use prior to September 21, 2018.

With debts rising faster than new graduates’ starting salaries, a student debt crisis has the potential to haunt the nation much in the way the mortgage crisis did 10 years ago. In general, the roots of this problem lie, in part, in the private student loan, or PSL, market created by and in response to the Higher Education Act of 1965, or the HEA. The federal government’s commitment to funding post-secondary education spawned new lenders, borrowers and servicers, all operating within a regulatory regime administered by the U.S. Department of Education for more than 50 years. In the last decade, as borrowers assumed more unsustainable debts, federal actors, from the DOE to the Consumer Financial Protection Bureau, turned their attention to the behavior of private lenders and servicers of both federal and private loans. In this pursuit, federal authorities relied upon numerous consumer protection statutes and aligned themselves with many state-level agencies, including state attorneys general, from across the country.

Beginning in 2016, a new mood dampened the federal bureaucracy’s regulatory pace. The DOE, led by Secretary Elisabeth DeVos displayed decreased enthusiasm for regulation and litigation. Once John Michael “Mick” Mulvaney arrived at the CFPB, he brought a similar wariness for administrative and legal activism, one sure to be continued by any likely successor.

View full article published on Law360

 Under the Fair Credit Reporting Act, a potential employer generally may not procure a consumer report on an applicant unless the employer provides a disclosure, in a document that consists “solely of the disclosure,” informing the applicant that a consumer report may be obtained.  In Williams v. TLC Casino Enters., the District Court for the District of Nevada has joined a growing chorus of courts finding that a plaintiff cannot bring a “solely of the disclosure” claim in federal court when he or she has suffered no actual harm separate from the perceived failure to properly format the disclosure.

Specifically, in Williams, the plaintiff alleged (on a class basis) that TLC Casino Enterprises violated the FCRA by obtaining a consumer report on her without providing her with a “stand-alone document of a legal disclosure.” According to Williams, TLC only provided her “with a written conditional offer to hire that included, inter alia, the following statement: ‘Continuation of this position and your employment is dependent upon your passing any Background Check or Drug Screen that may be required for your position.’” This document, in Williams’ view, was not a disclosure that consisted “solely of the disclosure” that a consumer report may be obtained for employment purposes.

TLC Casino Enterprises moved to dismiss Williams’ complaint for lack of standing, arguing that her claim amounted to nothing more than a bare procedural violation of the FCRA. According to the defendant, Williams could not state a claim in federal court because the bare procedural violation of a statute alone does not satisfy the injury-in-fact requirement for Constitutional standing.

The Court agreed with TLC Casino Enterprises. In its decision, it drew on the Supreme Court’s decision in Spokeo, Inc. v. Robins to conclude that Williams must allege a “concrete injury in fact” separate from the procedural violation of a statute in order to demonstrate standing.  Williams could not do that here. According to the Court, Williams framed TLC Casino Enterprises’ alleged FCRA violation as having “failed to provide the disclosure in a format required by the FCRA.” But “[a] formatting error such as this is a procedural issue that does not satisfy the requirement that plaintiff demonstrate a concrete, particularized injury.”

Although plaintiffs’ counsel often argue that disclosure claims are straightforward and easily certifiable as a purported class action, the Williams decision demonstrates that this is not the case. Indeed, courts are increasingly dismissing disclosure claims when plaintiffs allege nothing more than the violation of a procedural FCRA requirement.

We will continue to track this and other developments regarding the intersection of FCRA claims and standing to sue in federal court.

 

The Third Circuit recently applied the D.C. Circuit’s decision in ACA International v. FCC and granted summary judgment in favor of the defendant in a Telephone Consumer Protection Act claim.  The Court held in Dominguez v. Yahoo, Inc. that Yahoo’s Email SMS Service was not an automatic telephone dialing system (or “ATDS”) because it did not have the “present capacity to function as an autodialer.”

Plaintiff Bill Dominguez filed suit against Yahoo alleging that it violated the TCPA by sending thousands of text messages to his cellular phone without his prior express consent.  Specifically, Dominguez received a text message from Yahoo each time the prior owner of the number received an email sent to his Yahoo email account.  Plaintiff alleged that Yahoo’s Email SMS Service was an ATDS as defined by the TCPA.

In 2014, the Eastern District of Pennsylvania found the Email SMS Service was not an ATDS because it “did not have the capacity to store or produce telephone numbers using a random or sequential number generator.”  On appeal of that decision, the FCC issued its 2015 Declaratory Ruling interpreting “capacity” to “include any latent or potential capacity.”  As a result of the 2015 Declaratory Ruling, the appellate court vacated the district court’s decision and remanded the case to the district court.  Thereafter, Yahoo again moved for summary judgment, which was again granted in its favor.  The district court’s second decision resulted in another appeal to the Third Circuit.  While the appeal was pending, the D.C. Circuit issued its opinion in ACA International v. FCC.

In light of the decision in ACA International, the Third Circuit held that it would “interpret the statutory definition of an autodialer as [it] did prior to the issuance of 2015 Declaratory Ruling.”  The question the Third Circuit focused on is “whether [Dominguez] provided evidence to show that the Email SMS Service had the present capacity to function as an autodialer.”  After reviewing multiple expert reports on Yahoo’s Email SMS Service, the Third Circuit held that Dominguez could “not point to any evidence that create[d] a genuine dispute of fact as to whether the Email SMS Service had the present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.”  The Court further noted that the evidence showed that the Email SMS Service only sent messages to numbers that were “individually and manually inputted into its system by a user.”  As such, the system at issue was not an ATDS and summary judgment was granted in favor of Yahoo.

The decision in Dominguez indicates that courts, post-ACA, will likely be focusing on the narrowed definition of what constitutes an ATDS.  Because courts no longer have to analyze “potential capacity,” we may see a shift in focus to a telephone system’s “present capacity to function as an autodialer by generating random or sequential telephone numbers and dialing those numbers.”

Many employers use background checks when evaluating potential candidates for hire.  They do this for a variety of reasons, from basic due diligence to a desire to avoid negligent hiring claims in the future.  If an employer intends to use this employment background check – often referred to as a consumer report – to take adverse action against the candidate, it must generally comply with the Fair Credit Reporting Act (“FCRA”) when doing so.   

Specifically, when “using a consumer report for employment purposes, before taking any adverse action based in whole or in part on the report, the person intending to take such adverse action shall” provide the candidate with a copy of the report and a summary of rights.  Courts typically regard this disclosure requirement as the employer’s obligation, not the obligation of the consumer reporting agency providing the report.  Surprisingly, in Doe v. Trinity Logistics, the District Court for the District of Delaware reached a conflicting conclusion – at least at the pleadings stage. 

In Doe, the plaintiff applied for a job at Trinity Logistics in August 2016.  She claims that Trinity ordered a consumer report from Pinkerton Consulting and Investigations as part of the hiring process, which Pinkerton “flagged” as having adverse information before providing it to its client.  When Pinkerton failed to provide the plaintiff with a copy of her consumer report and summary of rights before Trinity took adverse action, the plaintiff claimed that Pinkerton violated the FCRA’s pre-adverse action obligations.  Pinkerton disagreed, arguing that the plaintiff’s position was contrary to the FCRA, which requires the person “using” the consumer report to provide the disclosures. 

The Court disagreed with Pinkerton at the pleadings stage.  According to the Court, the plaintiff adequately pled that Pinkerton and Trinity had “shared decision-making responsibility,” which could impart pre-adverse action obligations on Pinkerton.  As a result, it declined to dismiss the pre-adverse action claim against Pinkerton. 

The Court’s decision in Doe is contrary to the generally accepted principle that a consumer reporting agency does not become a “user” of a consumer report by simply providing the report to its customer.  The decision bears watching, though, as allegations of “joint use” could catch on if the Doe decision gains traction with other courts.

The District of Nevada recently applied the D.C. Circuit’s decision in ACA International v. FCC and granted summary judgment in favor of the defendant on plaintiff’s Telephone Consumer Protection Act claim.  Specifically, the Court held in Marshall v. The CBE Group, Inc. that CBE’s phone system does not qualify as an automatic telephone dialing system, commonly referred to as an “ATDS.”

Plaintiff Gretta Marshall filed suit against CBE, a third-party debt collector, alleging that it violated the TCPA and the Fair Debt Collection Practices Act through its collection efforts related to her outstanding bill.  Marshall alleged that CBE’s agents used an ATDS to contact her in violation of the TCPA.  CBE places calls using a Manual Clicker Application (“MCA”), requiring the call agent to click a bullseye on a computer screen to place a call.  When a CBE agent clicks the bullseye, a call is sent through a cloud-based connectivity pass-through, LiveVox, and then the CBE agent is connected with the person to whom the call is placed.

In analyzing CBE’s “communication infrastructure,” the Court stated that in light of the ACA v. FCC decision, it would apply the statutory language defining an ATDS, resulting in a focus on whether CBE’s phone equipment has the capacity to produce or store phone numbers to be called using a random or sequential number generator.  The Court noted that the overwhelming authority held that “point and click” dialing systems, used in unison with cloud-based pass-through services, did not qualify as ATDSs due to the human intervention required to place the call.  Applying this rationale, the Court found that CBE agents who were required to click the bullseye were “integral to initiating outbound calls.”  This finding weighed in favor of finding that the MCA, used with LiveVox, was not an ATDS.

Further, the Court dismissed Marshall’s allegations that LiveVox, the cloud-based pass-through, placed the calls and qualified as an ATDS.  Marshall argued that because LiveVox could perform call progress analysis (such as maintaining call logs), it actually initiated the call, not CBE.  Ultimately, the Court found that Marshall had not presented any evidence or legal authority sufficient to create a genuine dispute of material fact as to LiveVox’s alleged qualification as an ATDS.  Specifically, Marshall did not show that LiveVox’s ability to track calling information meant that LiveVox has the capacity to produce or store telephone numbers to be called, using a random or sequential number generator, and to dial the numbers.

Given the human intervention necessary to place calls using MCA and Marshall’s failure to create a genuine dispute of material fact regarding LiveVox’s role, the Court held that CBE did not use an ATDS to place calls to Marshall.

The District of Nevada is one of the first courts to apply the decision from ACA International v. FCC when interpreting the definition of an ATDS.  The decision in Marshall v. CBE indicates that courts will be able to simplify their analysis of whether a telephone system qualifies as an ATDS under the TCPA by eliminating the need to determine “potential functionalities” of a calling system and instead focusing on the calling systems’ “capacity to store or produce telephone numbers to be called, using a random or sequential number generator.”

Please join us on Tuesday, April 17th from 2:00 – 3:00 PM ET for a complimentary webinar with speakers Chad Fuller, David Gettings, Alan Wingfield and Virginia Bell Flynn.

So often the defense of consumer class actions focuses on the substance of the law. Was my consumer report accurate? Was my collection letter misleading or deceptive? Did I have consent to place a call using an ATDS?

Please join Troutman lawyers for a discussion of some recent developments in procedure that could be game-changers. These are legal developments that do not turn on the substance of the claim, but could raise effective defenses if used appropriately. We will discuss the impact the Bristol-Myers Squibb decision has had on personal jurisdiction in nationwide class actions, the tolling effect of pending class actions on future lawsuits, and the impact of Spokeo arguments in practice. For good measure, we will also discuss the impact that the D.C. Circuit’s landmark ruling in ACA v. FCC has had on Telephone Consumer Protection Act individual lawsuits and class actions in the first month since the decision.

Click here to register.

Under the Fair Credit Reporting Act, when a potential employer is considering using a background check to deny an applicant employment, the employer must follow a prescribed adverse action process. For qualifying transportation employers, this means the employer must provide the applicant with a notice of adverse action within three days of the final adverse decision. The District Court for the Northern District of Illinois, however, recently confirmed that even if an employer fails to follow the proper procedure, an applicant may not have standing to bring an adverse action claim if the background check at issue is accurate. This could be a significant decision for employers facing adverse action claims from applicants who indisputably have a disqualifying conviction in their background.

Specifically, in Ratliff v. A&R Logistics, Inc., plaintiff Jerome Ratliff, Jr. claimed that A&R Logistics declined to hire him based on his background check without following a proper adverse action process. In response, A&R Logistics moved to dismiss the complaint on the ground that Ratliff had not suffered any injury-in-fact stemming from the alleged violation and, therefore, had no standing. According to A&R Logistics, Ratliff could not show any injury-in-fact because the background check at issue was accurate.

The Court conducted its standing analysis in two parts. It first considered whether Ratliff had suffered an “informational injury” that could satisfy the injury-in-fact requirement for standing. The Court found that a plaintiff could show “informational injury” if a third party was disseminating inaccurate information about him or her that could cause concrete harm. However, because Ratliff failed to allege that the background check on him contained any inaccuracies, he could not show any “informational injury.” Effectively, Ratliff could not show that he suffered any appreciable “real life” injury by not receiving a copy of his accurate background check.

The Court also considered whether the failure to provide Ratliff with a background check constituted an “invasion of privacy” sufficient to demonstrate injury-in-fact. The Court quickly disposed of that argument. In the Court’s view, the FCRA’s adverse action provision is not designed to protect consumer privacy. As a result, Ratliff could not show that the statutory violation at issue constituted a privacy invasion sufficient to support an injury-in-fact.

Ultimately, the Court’s decision in Ratliff follows a reasonable approach to injury-in-fact analysis that is rooted in the Supreme Court’s Spokeo decision. Simply stated, the violation of a statute alone does not constitute an injury-in-fact for standing purposes without an accompanying real-world injury.