A District Court judge in Washington has granted a plaintiff’s motion to certify a class action against a debt collector accused of violating the Telephone Consumer Protection Act by obtaining the plaintiff’s cell phone number via a skiptracing service and contacting the plaintiff without first obtaining consent to do so, even though the defendant had access to call recordings that included the number and a file from another contractor that the number was in, as well.
A copy of the ruling in the case of Swanson v. National Credit Services can be accessed by clicking here.
The plaintiff received calls to her cell phone on 23 different dates in a six-month span of 2019, in some cases receiving as many as seven calls per day. The day the account was placed with the defendant, it ran the account through a skiptracing service and was provided the plaintiff’s cell phone number. But when it received the plaintiff’s file, the defendant had access to a call recording from a 2017 conversation between a different collector and the plaintiff in which the plaintiff provided her cell phone number. The defendant did not attempt to access that recording until the plaintiff filed her complaint. The previous collector also provided the plaintiff’s phone number in the file it send to the defendant, but that was not sent until after the defendant had already obtained the number through the skiptracing service.
The plaintiff claims the defendant violated the TCPA by making calls using an automated telephone dialing system and prerecorded calls or artificial voice calls. In filing the suit as a class-action, the plaintiff wants to include anyone else who was contacted by the defendant going back to 2015 and who had their numbers obtained in the same way the defendant obtained the plaintiff’s number.
The defendant denied that it used an ATDS or made prerecorded calls or calls with an artificial voice, and that it had access to the phone number and consent to call when it made the first call. But Judge Robert S. Lasnik of the District Court for the Western District of Washington went ahead and certified the class, ruling that while the issue of whether access to the files in question was sufficient to confer consent is “a closer legal question,” the class certification stage of the process was not the time to answer that question.
“However, the issue of whether defendant can show that its right of access to Maximus’s files constituted prior express consent is one that is currently capable of classwide resolution,” Judge Lasnik wrote. “Accordingly, while the affirmative defenses defendant presses will no doubt be important to the outcome of the litigation, they presently do not undercut the central common issues in this case.”
