On June 24, 2016 a Pennsylvania District Court ruled that a plaintiff who manufactured Telephone Consumer Protection Act (“TCPA”) lawsuits had no standing to pursue her TCPA claims in Federal Court. The case is Stoops v. Wells Fargo Bank, NA (Case No. 3-15-83, United States District Court, Western District Of Pennsylvania).  A copy of the Court’s Memorandum, Opinion and Order can be found here.

Background

In June of 2014 the plaintiff purchased and activated over 35 prepaid cell phones that were serviced by Tracfone Wireless (“Tracfone”). Plaintiff bought the phones for the sole purpose of receiving calls from unwitting creditors and suing under the TCPA. Plaintiff selected Florida zip codes, and Tracfone assigned telephone numbers for each cell phone. Despite residing in Pennsylvania, Plaintiff selected locations in Florida that she knew to be economically depressed. She selected Florida because, per her deposition transcript, “there is a depression in Florida,” where “‘people would be usually defaulting on their loans or their credit cards,’” and because it is the location with which “[she] is most familiar.”

After purchasing and charging the cell phones, Plaintiff waited for them to ring and sometimes answered the calls to identify the caller. Plaintiff tracked the incoming calls on a call log sheet. She carried her cell phones with her when she traveled so that she could continue to record the incoming calls.

Plaintiff occasionally informed the caller to stop calling, though she intended for the calls to continue because she “‘was hopefully going to ask [her] lawyers to do trebling with knowing and willful’” violations of the TCPA if they did.

Plaintiff is a frequent litigant.  She had filed multiple TCPA suits, with at least 7 in the Pennsylvania District Court and had sent at least 20 “pre-litigation demand letters.”

Two of the Plaintiff’s 35 phones were relevant to this action; the two cell phones that were assigned (863) XXX-6128 and (305) XXX-4589 as telephone numbers. The Defendant, Wells Fargo Bank, NA (Wells), had two delinquent customers in area codes 863 and 305 who had owned the telephone numbers prior to Plaintiff and consented to receiving auto-dialed calls or calls with a prerecorded voice.

Between September 15, 2014, and November 20, 2014, Defendant initiated seventy-three telephone calls to the telephone number (863) XXX-6128, and nineteen of these calls resulted in successful communication.

Between September 23, 2014, and November 13, 2014, Defendant initiated twelve telephone calls to the telephone number (305) XXX-4589, and five of these calls resulted in successful communication.

Defendant’s collectors dialed one of the telephone numbers in an effort to reach customers with the last name of “Pereira” and dialed the other in an effort to reach customers with the last name of “Newman.” None of the calls were intended for the Plaintiff.

Plaintiff did not provide Wells with either of these telephone numbers and did not inform Wells that it could call her at the telephone numbers. Plaintiff did not know either of the two intended recipients of the calls.

In a joint stipulation of facts filed by the parties on November 24, 2015, Defendant agreed and stipulated that all of the telephone calls it initiated/made to cell phone numbers (305) XXX-4589 and (863) XXX-6128 . . . were made with an Automated Telephone Dialing System (ATDS) as defined under the TCPA.

Plaintiff filed a complaint in the Court of Common Pleas of Cambria County on March 4, 2015. Defendant removed the matter to this Court on March 31, 2015, and filed an answer to the complaint. Defendant filed a motion for summary judgment on December 10, 2015, and Plaintiff filed a cross-motion for summary judgment on January 21, 2016, After the parties fully briefed their respective motions, the Court held oral argument on May 23, 2016. The Memorandum, Opinion and Order referenced above addresses and resolves the cross motions.

Editor’s note: A motion for summary judgment is based upon a claim by one party (or, in some cases, both parties) that contends that all necessary factual issues are settled or so one-sided they need not be tried. The summary judgment is appropriate when the court determines there no factual issues remaining to be tried, and therefore a cause of action or all causes of action in a complaint can be decided upon certain facts without trial.

The Court’s Opinion

In the Court’s Opinion the Judge (The Honorable Kim R. Gibson) addressed the arguments made by Wells in support of their motion for summary judgment.

Wells had made four arguments in their motion for summary judgment:

1. It did not “make any call” to Plaintiff because she manufactured the calls.
2. Plaintiff consented to receive the calls.
3. Plaintiff’s claim is barred by the doctrine of assumption of the risk.
4. Plaintiff lacked Article III standing to assert her claim because she is not a member of the class that the TCPA was designed to protect and did not suffer the type of harm that the TCPA was designed to prevent.

The Judge rejected the first 3 arguments. The crux of the opinion focuses on the last argument, that Plaintiff lacked standing to bring the claim. This case is one of the first TCPA opinions to reference the Spokeo case. (Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). See insideARM discussion of the Spokeo case here.

Referencing Spokeo, Judge Gibson discussed the type of harm or injury required to have standing to bring a TCPA case. Judge Gibson wrote: “The injury-in-fact must also be “concrete,” which means “real” and “not abstract. The Supreme Court made clear that Article III standing requires a concrete injury even in the context of a statutory violation.” The Judge then referenced selections of the transcript of Plaintiff’s deposition in this case.

In discussing her business, Plaintiff testified:

Q. Why do you have so many cell phone numbers?

A. I have a business suing offenders of the TCPA business — or laws.

Q. And when you say business, what do you mean by business?

A. It’s my business. It’s what I do.

Q. So you’re specifically buying these cell phones in order to manufacture a TCPA? In order to bring a TCPA lawsuit?

A. Yeah.

Q. Are you purchasing these phones purposefully to cause them to ring?

A. Yes.

Q. Okay. And you understand that the phones ringing is — is with — is it your intention that these phone calls are going to result then in some sort of a demand whether it’s pre-litigation or an actual lawsuit?

A. I believe so.

When questioned about her TCPA lawsuits, Plaintiff testified:

Q. So is there another purpose that you use these cell phones for other than –

A. No.

Q. — to — no.

So the purpose is to bring a TCPA lawsuit?

A. Correct.

Q. Does anyone you know ever call you at these phone numbers?

A. No, ma’am.

Q. Did you ever use any of these phone numbers to call anyone?

A. No, ma’am.

Judge Gibson then wrote:

“As her testimony establishes, Plaintiff’s privacy interests were not violated when she received calls from Defendant. Indeed, Defendant’s calls “[did] not adversely affect the privacy rights that [the TCPA] is intended to protect.” Because Plaintiff has admitted that her only purpose in using her cell phones is to file TCPA lawsuits, the calls are not “a nuisance and an invasion of privacy. The Court therefore must reject Plaintiff’s argument that she suffered an injury-in-fact because her privacy interests were violated.

Because Plaintiff has admitted that her only purpose in purchasing her cell phones and minutes is to receive more calls, thus enabling her to file TCPA lawsuits, she has not suffered an economic injury.”

insideARM Perspective

This is a very positive case for the ARM industry. Kudos to Wells Fargo and their legal team for defending the case and presenting a compelling argument. insideARM suspects that this case will be covered extensively by ARM industry legal experts in the coming days.  The legal analysis will be fascinating to read.

The facts suggest that Plaintiff was/is a professional Plaintiff, with thirty-five cell phones for the sole purpose of capturing calls on reassigned phone numbers and making claims under the TCPA.  The fact that she refers to her activity as a “business” is frightening.  How many other professional TCPA Plaintiffs exist? How many other businesses have simply paid money to settle the alleged claims? How much money has been generated by this “business?”