Phone calls made to promote a movie constituted “telemarketing” under the Telephone Consumer Protection Act (TCPA) even though the two prerecorded messages left on the plaintiffs’ home phone line made no reference to the movie, the Eighth Circuit recently ruled. 

In Golan v. Vertias Entertainment, LLC, the plaintiffs filed a putative class action complaint alleging that defendants had initiated the phone calls to them as part of telemarketing campaign to promote a movie in violation of the TCPA. They alleged that although they were registered on federal and state “do not call” lists, the defendants obtained their telephone number from a database they had purchased.

According to the complaint, when a call made by the defendants was answered by a live person, the call recipient would hear a prerecorded script in which a “celebrity” spokesperson stated that he was a supporter of the movie and provided information about its content, including that it was “about faith, freedom and taking a stand for American values.” If the call was answered by an answering machine, a message would be left stating “Liberty. This is a public survey call. We may call back later.” The plaintiffs alleged that they only heard this prerecorded message.

The district court dismissed the plaintiffs’ complaint, concluding that the plaintiffs had not suffered an injury in fact because the messages they received did not contain an advertisement, telemarketing message, or telephone solicitation in violation of the TCPA. The district court also concluded that the plaintiffs were inadequate class representatives because they could not show that their claims were typical of putative class members. According to the district court, because they only heard the brief message left on their answering machine rather than the full script, they were subject to a “unique defense.”

Under the TCPA regulations, advertisements include “material advertising the commercial availability or quality of any property, goods, or services.” Telemarketing is defined as “the initiation of telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which is transmitted to any person.”

According to the Eighth Circuit, based on the regulations’ plain language, a call’s content determines whether it is “advertising” while its purpose determines whether it is “telemarketing.” Reversing the district court, the Eighth Circuit ruled that the calls received by the plaintiffs were not “advertisements” because they did not mention “property, goods or services,” but they did constitute “telemarketing” under the TCPA because they were initiated for the purpose of promoting the movie.

The Eighth Circuit also ruled that the district court had erred in concluding the plaintiffs were inadequate class representatives. According to the Eight Circuit, the critical issue was the purpose of the calls. Thus, because each call made to a class member was initiated for the purpose of promoting the movie regardless of whether a class member heard the full script, the plaintiffs could represent the class.  

The Eighth Circuit’s decision is very likely to be impacted by the outcome of Spokeo v. Robins. There, merits briefing is currently proceeding in the U.S. Supreme Court on the issue of whether Congress may confer Article III standing on a plaintiff who has not suffered any concrete harm by authorizing a private cause of action for a bare statutory violation. 

Ballard Spahr’s TCPA Task Force assists clients in navigating the complex and challenging issues that arise under the TCPA. The Task Force, which comprises regulatory attorneys and litigators, provides counsel on TCPA compliance and avoiding TCPA liability, including reviewing policies and practices and helping to design mobile text message and prerecorded and autodialed call campaigns. It also assists clients in handling scrutiny from regulators, including preparing for examinations, responding to investigations, and defending against enforcement actions. Task Force members also defend clients against TCPA class or individual actions.

Ballard Spahr’s Consumer Financial Services Group is nationally recognized for its guidance in structuring and documenting new consumer financial services products, its experience with the full range of federal and state consumer credit laws, and its skill in litigation defense and avoidance (including pioneering work in pre-dispute arbitration programs).

For more information, please contact Consumer Financial Services Group Practice Leader Alan S. Kaplinsky at 215.864.8544 or kaplinsky@ballardspahr.com, John L. Culhane, Jr., at 215.864.8535 or culhane@ballardspahr.com, Mark J. Furletti at 215.864.8138 or furlettim@ballardspahr.com, Daniel JT McKenna at 215.864.8321 or mckennad@ballardspahr.com, or Joel E. Tasca at 215.864.8188 or tasca@ballardspahr.com.

 


 

 

 

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