A District Court judge in California has granted summary judgment in favor of a plaintiff who sued a collection agency for allegedly violating the Telephone Consumer Protection Act by calling her cell phone 199 times without first obtaining her consent to do so, awarding the plaintiff $300,000 in damages in determining that the violations were willful.
A copy of the ruling in the case of Lamkin v. Portfolio Recovery Associates can be accessed by clicking here.
What is interesting to this non-lawyer is that the calls were made in between 2008 and 2010, at which point the plaintiff requested that the defendant stop contacting her, which it did, but the lawsuit was not filed until 2018.
The defendant obtained the plaintiff’s cell phone number through skiptracing the plaintiff’s name after it purchased the defaulted credit card debt from a third party. After the skiptracing efforts yielded the plaintiff’s cell phone number, the defendant called the plaintiff 199 times to collect on the unpaid debt. Before making the calls, the defendant never determined if the plaintiff had consented to be contacted on her cell phone.
Acknowledging how it obtained the plaintiff’s cell phone number and that it made the calls, the defendant tried to argue that the system it used did not meet the definition of an automated telephone dialing system under the TCPA. The plaintiff asked the court to apply the definition of ATDS from Marks v. Crunch while the defendant wanted the court to use the definition from Satterfield v. Simon & Schuster.
Since both sides agreed that the technology used by the defendant can “store numbers to be called” and “dial such numbers automatically,” it met the definition for an ATDS.
Addressing the issue of whether the violation of the TCPA was willful, the defendant wanted the judge to consider that it stopped calling as soon as the plaintiff revoked consent to be contacted. But because the defendant never sought or confirmed consent in the first place, it should have known it did not have consent to contact the plaintiff on her cell phone, the judge ruled, in awarding treble damages for each call to the plaintiff.
