Antitrust Law Daily Wrap Up, PRIVACY—C.D. Cal.: TCPA claims proceed against wholesale alarm monitoring services provider, (Jul 8, 2014)

By Greg Hammond, J.D.

COPS Monitoring, a provider of wholesale alarm monitoring services, could not obtain dismissal of a consumer’s claims that the company violated the Telephone Consumer Protection Act (TCPA). In denying the provider’s motion to dismiss, the federal district court in Los Angeles determined that the consumer stated sufficient claims for negligent, knowing, and/or willful violations of the TCPA (Pacleb v. Cops Monitoring, July 7, 2014, Snyder, C).

Background. In his first amended complaint, Florencio Pacleb alleged that he received multiple automated telephone calls from COPS, in which an individual was looking for someone by the name of "Frank Arnold." During one or more of these telephone calls, the company attempted to sell home security to Pacleb. He asserted that the calls were made by an automated telephone dialing system, and he did not provide his prior express consent to receive the calls. Consequently, he filed a putative class action, alleging violations of the TCPA. COPS moved to dismiss the TCPA claims.

Sufficiency of TCPA claims. According to the court, the TCPA provides that it is "unlawful for any person within the United States…to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice…to any telephone number assigned to a…cellular telephone service…for which the called party is charged for the call."

In support of its motion to dismiss, COPS argued that: (1) Pacleb lacked standing because the caller was looking for "Frank Arnold" and Pacleb was therefore not the "called party"; (2) the calls were made for emergency purposes to alert someone that a security alarm had been triggered; (3) the company has no direct relationship with downstream consumers of security services and it was therefore implausible that it would have attempted to sell home security to Pacleb; and (4) some of Pacleb’s allegations were conclusory and should not be assumed for motion to dismiss purposes.

The court disagreed with all of COPS’ arguments. Specifically, it found that: (1) Pacleb had standing to bring his claim, as he was the "called party" in the instant case—the subscriber to the call at the time the call was made; (2) the emergency exception to the TCPA did not apply to the allegation that at least one of the calls was made with the purpose of selling home security to Pacleb; (3) COPS’ implausibility argument failed because it was based on facts that did not appear in the complaint; and (4) Pacleb’s claims were not conclusory and were sufficiently alleged. Consequently, COPS’ motion to dismiss was denied.

The case number is 2:14-CV-01366-CAS(JCx).

Attorneys: Lee Paul Mankin, IV for Florencio Pacleb. Michael Lee Cypers (Glaser Weil Fink Jacobs Avchen & Shapiro LLP) for COPS Monitoring.

Companies: COPS Monitoring

Cases: ConsumerProtection Privacy CaliforniaNews