California Ruling Assists Plaintiffs In Class Action Over Unwanted Cell Phone Calls

Gutierrez v. Barclays Group is a class action filed in federal court in the Southern District of California under the Telephone Consumer Protection Act (47 U.S.C. § 227). The plaintiffs, a husband and wife, failed to pay their credit card debt and then filed suit over collection calls made to their cell phones. Under the TCPA, calls to cell phones using an automatic dialer or a pre-recorded message are illegal unless the caller had prior consent to make such a call. In this case, the defendants moved for summary judgment, contending they had prior consent because Ramon Gutierrez provided the two cell phone numbers on his credit application, which authorized collection calls to be made (one of the numbers was his wife's cell phone). In response, the plaintiffs claimed that Ramon could not consent on behalf of the wife and that the wife never actually consented to be called on her cell phone. The plaintiffs also argued that when they began receiving calls to their cell phones, they told the caller to stop calling them. In a decision published at 2011 U.S. Dist. Lexis 12546 on February 9th, the Court denied defendants' summary judgment motion, on the basis that while the husband did have "common authority" to consent for the wife, consent to place the calls in question was ultimately lacking because "prior express consent may be [and was in fact] revoked orally." The court also ruled that the wife has standing to sue even though the calls were intended for her husband because she is the cell phone "subscriber". This holding conflicts slightly with other recent cases holding that it is the "called party" who has standing to sue under the TCPA. The ruling could open the door for more TCPA class actions, because under this new standard, it is extremely easy to revoke written permission to make collection calls to cell phones. The defendants are now in a difficult situation: the plaintiffs signed up for a credit card, provided their cell phone numbers, and then stopped paying back the debt they ran up. When the defendants tried to collect the debt by calling the numbers they were given, they were hit with a class action lawsuit.

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