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Financial Services Law Insights and Observations

9th Circuit revives TCPA suit against insurance servicer

Courts TCPA Ninth Circuit Appellate FCC Robocalls Autodialer

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On August 10, the U.S. Court of Appeals for the 9th Circuit revived a lawsuit against an insurance servicing company (defendant) for allegedly using both an automated telephone dialing system and an artificial or pre-recorded voice to place a job-recruitment call without obtaining the plaintiff’s consent. According to the opinion, the plaintiff filed a suit alleging, among other things, TCPA violations after receiving the pre-recorded voicemail from the defendant regarding his “industry experience” and that the defendant is “looking to partner with select advisors in the Los Angeles area.” The district court dismissed the plaintiff’s action under Federal Rule of Civil Procedure 12(b)(6) for failing “to state a claim upon which relief can be granted,” holding that the TCPA and the relevant implementing regulation do not prohibit conducting job recruitment robocalls to a cellular telephone number. In addition, the district court “read the Act as prohibiting robocalls to cell phones only when the calls include an ‘advertisement’ or constitute ‘telemarketing,’ as those terms have been defined” by the FCC. The court found that since the plaintiff admitted that the job recruitment call he received did not involve advertising or telemarketing, he had not adequately pleaded a violation of the TCPA.

On the appeal, a three-judge panel of the 9th Circuit determined that the district court misread the TCPA and the implementing regulation when dismissing the plaintiff’s suit and remanded the case for further proceedings. The appellate court noted that the FCC provision was intended to tighten the consent requirement for robocalls that involve advertising or telemarketing, but the lower court incorrectly perceived the provision as “effectively removing robocalls to cellphones from the scope of the TCPA’s coverage unless the calls involve advertising or telemarketing.” Moreover, the panel wrote that “[t]he applicable statutory provision prohibits in plain terms ‘any call,’ regardless of content, that is made to a cellphone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called.”

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