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Florida Court Opens Door for Junk Call Class Actions

federal court in Florida has expanded the number of plaintiffs who can bring an action in a case involving unwanted cell phone calls from a creditor.

In a Telephone Consumer Protection Act (TCPA) settlement, Doctor Diabetic Supply LLC, a medical supply company, consented to a $2.2 million judgment for sending 4,324 unsolicited junk faxes to medical practices in Cincinnati.

Standing to sue

According to the US District Court for the Middle District of Florida, Tampa Division, the "primary user" of a cell phone line now has standing to sue under TCPA, even when another party is the actual subscriber to the service. The case opens the door for additional claims by plaintiffs who receive telephone calls on cell phone lines paid for by their employers or some other party.

The case arose out of telephone calls made by CFI Resorts Management, Inc. (CFIRM), to Greg Soulliere's cell phone using an automatic telephone dialing system without his prior consent. It made the phone calls in to collect past due maintenance and tax payments on his timeshare account.

Soulliere also sued Westgate Resorts, Ltd., Central Florida Investment Resorts Management, Inc., Westgate Vacation Villas, LLC., and Westgate Vacation Villas, HOA.

CFI Resorts' policy and procedures regarding phone calls require representatives:

  • To document all phone calls to owners
  • To keep detailed notes of all communications contemporaneously with the making of phone calls, or immediately thereafter
  • To report comments on every aspect of the communication, including when the owner requests not to be called.

Contacted multiple times

Interestingly, Soulliere reached out to CFIRM first in December 2014, when he bought an interest in a timeshare from someone on eBay. He contacted CFIRM on multiple occasions throughout December, inquiring about changing the owner's name for the timeshare account, faxing a copy of a recorded quit claim deed, asking about the status of the name change, and inquiring to get account information.

It was undisputed at court that CFIRM made no independent attempts to get Soulliere's contact information, but instead, was freely given this information by Soulliere during one of his phone calls.

With the ownership of the interest in the timeshare Soulliere purchased on eBay came an obligation to pay maintenance and taxes, and CFIRM was contacting Soulliere in an attempt to manage the property and collect unpaid maintenance and taxes.

The court ruled that standing to bring claims under the TCPA should be construed broadly to effectuate the statute's purpose to "protect users of telephones from nuisance calls and from unwanted invasions of their privacy."

"Regardless of whether Plaintiff's employer . . . is the subscriber in that it owns Plaintiff's cell phone number and pays the bill, Plaintiff is not precluded from having standing as it is not disputed that he was the primary or regular user" of the cell phone, the court held. This ruling will have broad implications due to the availability of damages on the theory of strict liability, making cases like Soulliere's a plaintiffs' attorney's dream.

The case is Soulliere v. Central Florida Investments, Inc., and can be found here.

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