Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—S.D. Miss.: Fingerhut may be liable for not honoring do-not-call requests, (Jul 9, 2015)
Law Firms Mentioned:The Mitchell Firm, PLLC
Organizations Mentioned:Bluestem Brands, Inc. | Faegre Baker Daniels, LLP | Morgan & Morgan, PA
By Jody Coultas, J.D.
Catalog company Bluestem Brands, Inc. d/b/a/ Fingerhut could be held liable for calling a consumer’s cell phone using an automatic dialer over a hundred times after that consumer revoked consent to be called, according to the federal district court in Jackson, Mississippi (Skinner v. Bluestem Brands, Inc., July 8, 2015, Reeves, C.).
The consumer opened a line of credit with Fingerhut, and agreed to written terms which permitted Fingerhut to call her cell phone using an automated dialing system. After requesting that Fingerhut stop calling her cell phone, the consumer received at least 161 calls in three months from Fingerhut in its quest to collect a debt owed by the consumer. The consumer sought statutory damages under the Telephone Consumer Protection Act (TCPA).
Fingerhut acknowledged that all of the calls in question were intentionally made, were not the product of mistake, and were made with knowledge that an autodialer was being used to place the call. Also, Fingerhut’s corporate representative testified that its agents have discretion to dishonor do-not-call requests. However, Fingerhut argued it had no liability because the consumer consented in the credit agreement to receive autodialed calls to her cell phone. Also, according to Fingerhut, Utah law did not grant the consumer the right to revoke consent.
The TCPA permits consumers to revoke their initial consent to receive autodialed calls. According to the court, Fingerhut was unable to show any legal authority giving parties permission to contract around the TCPA. Also, the contract did not state that the consumer waived her right to revoke consent. The contractual term did not grant Fingerhut permission to autodial the consumer’s cell phone forever. A contractual agreement could not override a consumer’s federal rights under the TCPA.
The case is No. 3:14-CV-256-CWR-FKB
Attorneys: Michael J. Vitoria (Morgan & Morgan, PA) for Barbara Skinner. Erin L. Hoffman (Faegre Baker Daniels, LLP), and Jesse Mitchell, III (The Mitchell Firm, PLLC) for Bluestem Brands, Inc.
Companies: Bluestem Brands, Inc.
Cases: ConsumerProtection Privacy MississippiNews