Glasser v. Hilton Grand Vacations Co.

• Decision Date: 27 January 2020
• Docket Number: No. 18-14586,No. 18-14499,18-14499
• Citation: 948 F.3d 1301
• Parties: Melanie GLASSER, Plaintiff-Appellant, v. HILTON GRAND VACATIONS COMPANY, LLC, Defendant-Appellee. Tabitha Evans, Plaintiff-Appellee, v. Pennsylvania Higher Education Assistance Agency, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

948 F.3d 1301

Melanie GLASSER, Plaintiff-Appellant,

v.HILTON GRAND VACATIONS COMPANY, LLC, Defendant-Appellee.

Tabitha Evans, Plaintiff-Appellee,

v.Pennsylvania Higher Education Assistance Agency, Defendant-Appellant.

No. 18-14499

No. 18-14586

United States Court of Appeals, Eleventh Circuit.

January 27, 2020

Amanda J. Allen, William Peerce Howard, The Consumer Protection Firm, Tampa, FL, Keith J. Keogh, Timothy J. Sostrin, Keogh Law, LTD, Chicago, IL, for Plaintiff-Appellant in 18-14499.

Angela Christine Agrusa, David Farkas, DLA Piper LLP (US), Los Angeles, CA, Fredrick H. L. McClure, DLA Piper LLP (US), Tampa, FL, Shay Dvoretzky, Jones Day, Washington, DC, Ernest H. Kohlmyer, III, Shepard Smith Kohlmyer & Hand, PA, Maitland, FL, for Defendant-Appellee in 18-14499.

Scott D. Owens, Scott D. Owens, PA, Hollywood, FL, for Amici Curiae National Association of Consumer Advocates, and Consumer Federation of America in 18-14499.

Geoffrey E. Parmer, Dogali Law Group, PA, Tampa, FL, for Service in 18-14499.

Megan S. Ben'Ary, McGlinchey Stafford, Washington, DC, for Amicus Curiae ACA International in 18-14499.

Adam Theodore Hill, The Law Offices of Jeffrey Lohman, PC, Corona, CA, Judith Delus Montgomery, The Law Office of Judith Delus, PA, Decatur, GA, for Plaintiff-Appellee in 18-14586.

Derin Bronson Dickerson, Gerald L. Mize, Jr., Tejas S. Patel, Alston & Bird, LLP, Atlanta, GA, for Defendant-Appellant in 18-14586.

Tara A. Twomey, National Consumer Bankruptcy Rights Center, Carmel, CA, for Amici Curiae Consumer Federation of America, National Association of Consumer Advocates, and National Consumer Law Center in 18-14586.

Before WILLIAM PRYOR, MARTIN, and SUTTON,^* Circuit Judges.

SUTTON, Circuit Judge:

After they each received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, Melanie Glasser and Tabitha Evans sued the companies that called them for violating the Telephone Consumer Protection Act. Both women allege that the companies placed the calls through "Automatic Telephone Dialing Systems," which the Act regulates and restricts. Because neither phone system used randomly or sequentially generated numbers and because the phone system in Glasser’s appeal required human intervention and thus was not an auto-dialer, the Act does not cover them.

I.

In 1991, Congress enacted the Telephone Consumer Protection Act. Pub. L. No. 102-243, 105 Stat. 2394. The law makes it illegal to "make any call ... using any automatic telephone dialing system or an artificial or prerecorded voice" to "emergency telephone line[s]," to "guest room[s] or patient room[s] of a hospital," or "to any telephone number assigned to a paging service[ ] or cellular telephone service" without the "prior express consent of the called party." 47 U.S.C. § 227(b)(1)(A). It defines an "automatic telephone dialing system" as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Id. § 227(a)(1). The law’s prohibition on using auto-dialers does not apply to residential land lines. Id. § 227(b)(1)(B). The Act enforces these requirements with penalties, including $500 for each illegal call. Id. § 227(b)(3)(B). If the caller "willfully" or "knowingly" violated the prohibition, the court may award $1,500 or more per call. Id. § 227(b)(3).

Melanie Glasser and Tabitha Evans entered the picture in 2013. Over the course of about a year, they each received over a dozen unsolicited phone calls to their cell phones. Hilton Grand Vacations Company, LLC, a timeshare marketer, called Glasser thirteen times about vacation opportunities. The Pennsylvania Higher Education Assistance Agency, a loan servicer, called Evans thirty-five times about unpaid student loans. Neither Glasser nor Evans consented to the calls.

The plaintiffs alleged that the companies used "automatic telephone dialing system[s]," often referred to as auto-dialers, in violation of the Act. The companies admitted that they called the plaintiffs, and they admitted that they used sophisticated telephone equipment to make the calls. But they disputed that their systems counted as auto-dialers under the Act. In Glasser’s case, the district court concluded that the system did not qualify as an auto-dialer because it required human intervention to dial the telephone numbers. In Evans’ case, the court concluded that the system qualified as an auto-dialer because it did not require human intervention and had the capacity to dial automatically a stored list of telephone numbers. The court also ruled that the Agency willfully violated the Act for thirteen of the calls that it made to Evans because those calls used an artificial or prerecorded voice, a separate means of violating the Act. The court accordingly awarded treble damages for those calls. Glasser and the Agency appealed.

II.

A brief word or two about jurisdiction is in order before we turn to the merits of these consolidated appeals. The U.S. Constitution empowers the federal courts to decide "Cases" or "Controversies." To ensure that a plaintiff has standing to bring such a claim, we ask whether the plaintiff (1) alleged a concrete injury (2) that’s traceable to the defendant’s conduct and (3) that the courts can redress. Lujan v. Defs. of Wildlife , 504 U.S. 555, 559–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).

The only tricky issue is whether these unwanted phone calls amount to concrete injuries. That Congress called them injuries and awarded damages for them does not end the inquiry. Congress "cannot erase Article III’s standing requirements" by granting a plaintiff "who would not otherwise have standing" the right to sue via statute. Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547–48, 194 L.Ed.2d 635 (2016) (quotation omitted). A real injury remains necessary. But a recent decision, as it happens, resolves the point for the plaintiffs. "The receipt of more than one unwanted telemarketing call," the court concluded, "is a concrete injury that meets the minimum requirements of Article III standing." Cordoba v. DIRECTV, LLC , 942 F.3d 1259, 1270 (11th Cir. 2019). We appreciate that the point is close, as another decision of the court suggests. See Salcedo v. Hanna , 936 F.3d 1162, 1168 (11th Cir. 2019). But Cordoba resolves it, establishing an Article III injury and giving plaintiffs standing to bring these claims.

III.

Section 227(a)(1) of the Act defines an "automatic telephone dialing system" as "equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers." Remember these words.

A.

The first question is what to do with the clause: "using a random or sequential number generator." Does it modify both verbs ("to store" and "[to] produce") or just one of them ("[to] produce" but not "to store")?

As Hilton and the Agency see it, the clause modifies both verbs. Thus: to be an auto-dialer, the equipment must (1) store telephone numbers using a random or sequential number generator and dial them or (2) produce such numbers using a random or sequential number generator and dial them. Because the equipment used in the debt-collection calls targeted a list of debtors (like Evans) and the equipment used in the solicitation calls targeted individuals likely to be interested in buying vacation properties (like Glasser), they say that the statute does not apply to their calls.

As Evans and Glasser see it, the clause just modifies "[to] produce." Thus: to be an auto-dialer, the equipment must (1) store telephone numbers and dial them or (2) produce such numbers using a random or sequential number generator and dial them. Under this reading, the statute extends to phone calls that target a pre-existing list of prospects or debtors, even though they were not randomly or sequentially identified.

Clarity, we lament, does not leap off this page of the U.S. Code. Each interpretation runs into hurdles. In the absence of an ideal option, we pick the better option—in this instance that the clause modifies both verbs.

Start with conventional rules of grammar and punctuation. When two conjoined verbs ("to store or produce") share a direct object ("telephone numbers to be called"), a modifier following that object ("using a random or sequential number generator") customarily modifies both verbs. Consider these examples to see the point. In the sentence, "Appellate courts reverse or affirm district court decisions using the precedents at hand," no one would think that the appellate judges rely on precedents only when affirming trial judges. Or if a law gives tax preferences for "[a] corporation or partnership registered in Delaware," then "a corporation as well as a partnership must be registered in Delaware" in order to be eligible for the preference. Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts , 148 (2012). The same principle applies here. See also Am. Nat’l Fire Ins. Co. v. Rose Acre Farms, Inc. , 107 F.3d 451, 456–57 (7th Cir. 1997).

On top of that, the sentence contains a comma separating the phrase "to store or produce telephone numbers to be called" from the phrase "using a random or sequential number generator." That, too, indicates that the clause modifies both "store" and "produce" and does not modify just the second verb. See Scalia & Garner, Reading Law at 150. See also Osorio v. State Farm Bank, F.S.B. , 746 F.3d 1242, 1257 (11th Cir. 2014) ; Yang v. Majestic Blue Fisheries, LLC , 876 F.3d 996, 999–1000 (9th Cir. 2017) (collecting cases).

The content of the words takes us in the same direction, though with two hiccups along the way. The first hiccup is the oddity of "stor[ing]" telephone numbers using a number generator. But this problem fades when one considers how automatic phone-dialing technology works and when one keeps in mind the goal of giving content to...