Antitrust Law Daily Wrap Up, PRIVACY—M.D. Fla.: Scope of “stop calling” directive in question in TCPA case, (Oct 9, 2014)

By Greg Hammond, J.D.

A consumer alleging that she gave a blanket directive to credit card issuer GE Capital Retail Bank to stop calling was unable to obtain summary judgment on Telephone Consumer Protection Act (TCPA) claims based on 22 calls subsequently made to her cell phone. In denying the consumer’s motion for partial summary judgment, the federal district court in Tampa determined that a question of material fact existed regarding whether the consumer told GE to stop calling her cell phone during work hours, or whether she actually gave a blanket directive to stop calling (Lehner v. GE Capital Retail Bank, October 7, 2014, Bucklew, S.).

Jamie Lehner was issued a Wal-Mart credit card in 2010, after applying with GE Capital Retail Bank. As part of the application process, Lehner provided GE with her cell phone number. However, in 2011, Lehner stopped making payments on the card, and GE started calling her cell phone, using an automated telephone dialing system, to collect the balance due. Lehner originally alleged in her complaint that she told GE to stop calling her cell phone during work hours because she was unable to answer during that time. Conversely, GE, in its response to Lehner’s interrogatories, noted that Lehner verbally advised GE to stop calling and that the “stop calling” directive was documented in its records system. After GE’s response, Lehner adopted the company’s position that she gave the blanket “stop calling” directive, and alleged that the 22 subsequently received calls from the company violated the Telephone Consumer Protection Act. Consequently, she filed a motion for partial summary judgment on the 22 calls she received.

Given the record, the court determined that a genuine issue of material fact exists in whether Lehner gave a blanket “stop calling” directive to GE, or whether she requested that GE stop calling her cell phone during work hours. In addition, assuming that Lehner requested the latter, the court noted that there was no evidence demonstrating that she ever provided GE with her actual work hours. Consequently, the motion for partial summary judgment was denied.

In her complaint, Lehner also alleged that GE violated the TCPA for making an additional 33 calls to her cell phone, prior to her “stop calling” directive, because she never consented to receiving those calls. The court noted that evidence contradicts her position, because providing a cell phone number as part of a credit application reasonably evidences prior express consent to be contacted at that number regarding the debt.

The case number is 8:13-cv-1870-T-24-MAP.

Attorneys: Alex D. Weisberg (Weisberg & Meyers, LLC) for Jamie Lehner. Michele F. Martin (Pastore & Dailey, LLC) for GE Capital Retail Bank.

Companies: GE Capital Retail Bank

Cases: Privacy FloridaNews