679 F.3d 637 (7th Cir. 2012), 11-3819, Soppet v. Enhanced Recovery Co., LLC

Docket Nº:11-3819.
Citation:679 F.3d 637
Opinion Judge:EASTERBROOK, Chief Judge.
Party Name:Teresa SOPPET and Loidy Tang, individually and on behalf of a class, Plaintiffs-Appellees, v. ENHANCED RECOVERY COMPANY, LLC, Defendant-Appellant.
Attorney:Daniel A. Edelman (argued), Attorney, Edelman, Combs & Latturner, Curtis C. Warner, Attorney, Warner Law Firm, LLC, Chicago, IL, for Plaintiffs-Appellees. James K. Schultz, Attorney, Sessions, Fishman, Nathan & Israel, LLP, Chicago, IL, Bryan C. Shartle (argued), Attorney, Sessions, Fishman, Nath...
Judge Panel:Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.
Case Date:May 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 637

679 F.3d 637 (7th Cir. 2012)

Teresa SOPPET and Loidy Tang, individually and on behalf of a class, Plaintiffs-Appellees,

v.

ENHANCED RECOVERY COMPANY, LLC, Defendant-Appellant.

No. 11-3819.

United States Court of Appeals, Seventh Circuit.

May 11, 2012

Argued April 19, 2012.

Rehearing Denied May 25, 2012.

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Daniel A. Edelman (argued), Attorney, Edelman, Combs & Latturner, Curtis C. Warner, Attorney, Warner Law Firm, LLC, Chicago, IL, for Plaintiffs-Appellees.

James K. Schultz, Attorney, Sessions, Fishman, Nathan & Israel, LLP, Chicago, IL, Bryan C. Shartle (argued), Attorney, Sessions, Fishman, Nathan & Israel, LLC, Metairie, LA, for Defendant-Appellant.

Timothy G. Shelton, Hinshaw & Culbertson, Chicago, IL, for Amicus Curiae.

Before EASTERBROOK, Chief Judge, and FLAUM and WOOD, Circuit Judges.

EASTERBROOK, Chief Judge.

The Telephone Consumer Protection Act (TCPA or " the Act" ), 47 U.S.C. § 227, is well known for its provisions limiting junk-fax transmissions. A less-litigated part of the Act curtails the use of automated dialers and prerecorded messages to cell phones, whose subscribers often are billed by the minute as soon as the call is answered— and routing a call to voicemail counts as answering the call. An automated call to a landline phone can be an annoyance; an automated call to a cell phone adds expense to annoyance. This suit arises from dozens of automated calls made to two cell numbers, which went to voicemail and thus consumed minutes from the subscribers' plans. All of the calls were made in a futile effort to reach previous subscribers to these numbers.

The situation is this: Customer incurs a debt and does not pay. Creditor hires Bill Collector to dun Customer for the money. Bill Collector puts a machine on the job and repeatedly calls Cell Number, at which Customer had agreed to receive phone calls by giving his number to Creditor. See In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶ ¶ 9, 10 (Jan. 4, 2008) ( 2008 TCPA Order ). The machine, called a predictive dialer,

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works autonomously until a human voice comes on the line. If that happens, an employee in Bill Collector's call center will join the call. But Customer no longer subscribes to Cell Number, which has been reassigned to Bystander. A human being who called Cell Number would realize that Customer was no longer the subscriber. But predictive dialers lack human intelligence and, like the buckets enchanted by the Sorcerer's Apprentice, continue until stopped by their true master. Meanwhile Bystander is out of pocket the cost of the airtime minutes and has had to listen to a lot of useless voicemail. (We use Bill Collector as the caller, but this simplified description could as easily use an advertiser that relies for consent on earlier transactions with Customer, or a box that Consumer checked on a vendor's web site.)

In this litigation, Teresa Soppet and Loidy Tang play the roles of Bystander; AT& T plays Creditor; Enhanced Recovery Co. plays the role of Bill Collector. Neither Soppet nor Tang ever consented to receive automated or recorded calls from Enhanced Recovery— but the two Customers did agree to receive calls at the numbers later assigned to Soppet and Tang. Enhanced Recovery called Soppet's number 18 times and Tang's 29 times. By the time it started calling, at least three years had passed since the two Customers furnished the Cell Numbers to AT& T as a way to contact them. Soppet and Tang sued under § 227(b)(3), which authorizes an award of actual damages, or $500 per violation, whichever is greater. These amounts are trebled for wilful violations.

The district court certified a class with Soppet and Tang as its representatives. Enhanced Recovery contended that the Customers' consents to be called at the two Cell Numbers remained in force after the numbers' reassignment to Soppet and Tang. The district court held not— that only the consent of the subscriber assigned to Cell Number at the time of the call (or perhaps the person who answers the phone) justifies an automated or recorded call. 2011 U.S. Dist. LEXIS 92888 (N.D.Ill. Aug. 21, 2011). The judge certified the issue for interlocutory review under 28 U.S.C. § 1292(b), and a motions panel of this court agreed to entertain the appeal, in...

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