Recently, a Michigan federal court delivered another blow in favor of telemarketers by dismissing a case captioned Barry v. Ally Financial, Inc. brought under the Telephone Consumer Protection Act (“TCPA”). The main issue at stake in the case was whether Ally Financial violated TCPA autodialer law when it placed calls to Ms. Barry. The Court held that the decision in Facebook v. Duguid clarified how courts should interpret “use of an autodialer”: calling or texting consumers from a list that was created using a random or sequential number generator. Because Ally’s contact list was comprised of its delinquent account customers, the Court held that it did not violate the TCPA’s autodialer provision.
How does the Barry decision affect the autodialer law?
Christine Barry received several unwanted calls from Ally on her cell phone. Trying to reach Ms. Barry’s brother, Ally was attempting to collect on his car loan debt. After receiving the calls, Ms. Barry filed a class action lawsuit alleging that Ally called her cellular phone without consent using an autodialer, in violation of the TCPA. Ally responded that it had constructed its contact list using accountholder information without use of a random or sequential number generator.
The Court ultimately agreed with Ally. In dismissing the case, the Court sided with several of its sister courts in holding that use of an autodialer requires using a random or sequential number generator to produce a contact list. “[T]hese calls targeted specific individuals in connection with specific accounts held by Defendant. That ends this case.” According to the Court, whether the dialing equipment has a number generator function is irrelevant; what matters is whether the caller used the number generator function to create the contact list at issue.
Why does the Barry decision matter to your business?
The Supreme Court’s Facebook decision provided a boost to telemarketers that are tasked with defending against autodialer law claims. With each decision that applies the Facebook ruling, the landscape becomes clearer. Understanding the complete rejection of some very popular plaintiff arguments will go far in the defense of pending TCPA claims and in combatting future cases.
The court in Barry did not just rule against a plaintiff on an autodialer law claim. It took down, point by point, each of the plaintiff’s arguments, making clear that using an autodialer is a narrow and specific concept. The Court rejected both the “capacity vs. use” argument and the Footnote 7 argument, probably the two most prevalent points that plaintiffs have relied on post-Facebook.
Protect your business by hiring experienced TCPA attorneys.
Running a business is difficult. Having to keep up with the ever-evolving TCPA landscape and other telemarketing laws (on top of everything else) just creates more headaches and anxiety. Hiring experienced attorneys who focus on the TCPA and telemarketing laws can bring much-needed relief. The attorneys at Klein Moynihan Turco can help you attain TCPA compliance and defend you in the event of a TCPA lawsuit. If you need assistance updating your telemarketing policies or defending against a TCPA claim, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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