Williams v. The Pisa Grp.

• Decision Date: 24 February 2023
• Docket Number: Civil Action 18-4752
• Citation: Williams v. The Pisa Grp., Civil Action 18-4752 (E.D. Pa. Feb 24, 2023)
• Parties: JANINE WILLIAMS, individually and on behalf of all others similarly situated v. THE PISA GROUP, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

JANINE WILLIAMS, individually and on behalf of all others similarly situated v. THE PISA GROUP, INC.

Civil Action No. 18-4752

United States District Court, E.D. Pennsylvania

February 24, 2023

MEMORANDUM

GERALD AUSTIN MCHUGH, UNITED STATES DISTRICT JUDGE

In 1991, Congress reacted to “consumers['] outrage[] over the proliferation of intrusive, nuisance [telemarketing] calls to their homes” by enacting the Telephone Consumer Protection Act (TCPA).Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372(2012)(quotingTCPA, § 2, ¶ 6, 105 Stat. 2394, note following 47 U.S.C. § 227(Congressional Findings)).The TCPA provides a private right of action for violations of the Act or the Federal Communication Commission's (FCC) implementing regulations.47 U.S.C. § 227(c)(5).One such FCC regulation-the basis for the present suit-prohibits telemarketing calls to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry (DNC) of persons who do not wish to receive telephone solicitations.”47 C.F.R § 64.1200(c)(2).^[1] Telemarketers who violate this regulation are exempt from liability only if they had the recipient's express written consent for the call, an existing relationship with the recipient, or if the violation was a result of an error despite the telemarketer maintaining procedures training, and records to generally avoid such violations.Id.

PlaintiffJanine Williams contends that Defendant Pisa Group (PGI) violated the TCPA by calling her and numerous others at their residential phones despite their phone numbers being registered on the DNC and despite their not having an established business relationship (EBR) with PGI.PGI admits to calling Williams and seven other individuals in error thirty-seven times, and Plaintiff has submitted an expert report suggesting that PGI may have improperly called as many as 30,373 residential telephone numbers that fall within the definition of Plaintiff's proposed class.Plaintiff now moves to certify the following class:

All natural persons in the United States who, within four years preceding the filing of this case, received more than one telephone solicitation call from PGI within a 12-month period telemarketing newspaper subscriptions more than 31 days after registering their telephone number with the National Do-Not-Call Registry.

Pl.'s Memo. in Support of Am. Mot. for ClassCert. at 21, ECF 43-1.After reviewing Plaintiff's Amended Motion for Class Certification^[2] and the record before me, I am satisfied that Williams has identified issues appropriate for resolution on a class-wide basis and has met the requirements of Federal Rule of Civil Procedure 23.I will thus certify the class.

I.Regulatory and Factual Background

A.Regulatory framework

FCC regulations prohibit telemarketing calls to “[a] residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry (DNC) of persons who do not wish to receive telephone solicitations,” regardless of whether the telemarketer is calling a landline or cellular phone.47 C.F.R. § 64.1200(c)(2),(e).Because the FCC promulgated this rule under the TCPA, individuals on the DNC who receive calls that violate the rule have a private right of action against the telemarketer.47 U.S.C. § 227(c)(5).Plaintiffs may seek an injunction and damages, and a court may award treble damages if the defendant willfully or knowingly violated the regulation.Id.

The FCC's rule provides defendants with three potential regulatory defenses in such actions.First, the rule exempts liability when the defendant can demonstrate that the violation is the result of error and that as part of its routine business practice, it meets the following standards:

(A) Written procedures.It has established and implemented written procedures to comply with the national do-not-call rules;

(B) Training of personnel.It has trained its personnel, and any entity assisting in its compliance, in procedures established pursuant to the national do-not-call rules;

(C) Recording.It has maintained and recorded a list of telephone numbers that the seller may not contact;

(D) Accessing the national do-not-call database.It uses a process to prevent telephone solicitations to any telephone number on any list established pursuant to the do-not-call rules, employing a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintains records documenting this process.

47 C.F.R. § 64.1200(c)(2)(i).Second, the defendant is exempt from liability if “[i]t has obtained the subscriber's prior express invitation or permission,” which “must be evidenced by a signed, written agreement between the consumer and seller which states that the consumer agrees to be contacted by this seller and includes the telephone number to which the calls may be placed.”47 C.F.R. § 64.1200(c)(2)(ii).Lastly, the defendant is exempt from liability if “[t]he telemarketer making the call has a personal relationship with the recipient of the call.”47 C.F.R. § 64.1200(c)(2)(iii).One such form of relationship is an established business relationship, commonly referred to as an EBR, 16 CFR § 310.4(b)(1)(iii)(B)(2), which the FCC defines as

a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a residential subscriber with or without an exchange of consideration, on the basis of the subscriber's purchase or transaction with the entity within the eighteen (18) months immediately preceding the date of the telephone call or on the basis of the subscriber's inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call, which relationship has not been previously terminated by either party.

47 C.F.R. § 64.1200(f)(5).

Each of these three regulatory exemptions from liability is an affirmative defense that a defendant bears the burden of proving.See16 CFR § 310.4(b)(1)(iii)(B);Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355, 366(3d Cir.2015)(citingOsorio v. State Farm Bank, F.S.B.,746 F.3d 1242, 1253(11th Cir.2014);Hartley-Culp v. Credit Mgmt. Co.,No. 14-0282, 2014 WL 4630852, at *2(M.D. Pa.Sept. 15, 2014);Elkins v. Medco Health Solutions, Inc.,No. 12-2141, 2014 WL 1663406, at *6(E.D. Mo.Apr. 25, 2014))(“[T]he courts generally have placed the burden to prove these TCPA exceptions on the creditor.”);KHS Corp. v. Singer Fin. Corp., 376 F.Supp.3d 524, 528(E.D. Pa.2019)(quotingVan Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044(9th Cir.2017))(“Express consent is.... an affirmative defense for which the defendant bears the burden of proof.”);United States v. Dish Network, LLC, 80 F.Supp.3d 917, 922(C.D. Ill.2015)(“The Existing Business Relationship exception raised by [Defendant] was an affirmative defense. . . .[Defendant], therefore, had the burden to prove that no issues of fact existed on this defense.”).

B. PGI and Janine Williams

Defendant PGI is a nationwide call center company that solicits newspaper subscriptions via phone calls.Maggio^[3]Dep. at 59:5-13; 7:17-8:5;18:7-12, ECF 43-2.PGI enters into contracts with newspapers-including the Philadelphia Inquirer-through which PGI obtains consumers' phone numbers and other contact information for telemarketing.Id.at 13:4-10; 118:8-11; 210:9211:17; 28:2-13; Def.'s Answers and Objs. to Pl.'s First Set of Interogs. at 4-5, ECF 43-14.Its business model primarily consists of “win-back” campaigns, in which PGI “call[s] customers who have recently expired or canceled their subscription and call[s] them back and tr[ies] to get them to review [their decision to cancel their subscription or let it lapse].”MaggioDep. at 17:16-21.PGI maintains customer relationship management (CRM) databases to track phone numbers with which it claims to have an EBR.Def.'s Answers and Objs. to Pl.'s First Set of Interrogs. at 6.PGI does not use or consider prior express consent when determining whether they can legally make telephone calls to individuals on the DNC registry and instead makes such calls only when PGI believes it has an EBR with an individual.Id. at 5.

PlaintiffJanine Williams is a Philadelphia resident.She registered her cellular phone number on the National Do Not Call Registry on June 28, 2013, where it continues to be registered.WilliamsDecl. at ¶¶ 5-6, ECF 43-4.She temporarily subscribed to the Philadelphia Inquirer, and her subscription ended on October 20, 2013.MaggioDep. at 64:23-66:7;WilliamsDecl. at ¶ 11.PGI called Williams' cellular phone at least twelve times without her consent between April 29, 2015 and October 26, 2015-more than eighteen months after her Philadelphia Inquirer subscription ended.MaggioDep. at 91:18-92:4;Maggio Aff. at¶ 10, ECF 43-6.PGI claims that these calls were the result of an error in which “numbers that were outside of the EBR exemption . . . were dialed.”MaggioDep. at 20:19-21.Williams contends that PGI called her many more than twelve times.WilliamsDecl. at ¶ 10;Pl.'s Memo. in Support of Am. Mot. for ClassCert. at 5-6(citingMaggioDep. at 229:11-22).

PGI has stated that an internal audit revealed seven other Philadelphia residents who were improperly dialed a total of twenty-five times despite not having an EBR with PGI.MaggioAff. at ¶ 12;MaggioDep. at 240:7-241:25; 23:8-19.PGI claims that all thirty-seven of these calls were the result of a single error that took place on April 29, 2015, in which PGI accidentally used a former active subscriber list rather than the current one, resulting in Williams and the other...