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Dreher Tomkies LLP
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2750 Huntington Center
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Columbus, Ohio 43215
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DISTRICT COURT VACATES ORDER FINDING LENDER LIABLE UNDER TCPA FOR CALLING CELL PHONES USING AN AUTODIALER AND PRERECORDED MESSAGES

The United States District Court for the Northern District of California recently vacated its own May 20, 2008 order in which it had held that a lender violated the federal Telephone Consumer Protection Act of 1991 (“TCPA”) by calling a debtor’s cell phone using an autodialer and prerecorded messages without the debtor’s express consent. Leckler v. CashCall, Inc., No. C 07-04002 SI (N.D. Cal. Nov. 21, 2008); see also District Court Refuses to Follow Recent Declaratory Ruling (DLT Alert May 28, 2008).

The defendant had moved the court to vacate its May 20, 2008 order and dismiss the plaintiff’s complaint on the grounds that the court had no jurisdiction to review a January 4, 2008 declaratory ruling in which the Federal Communications Commission found that autodialed and prerecorded message calls to wireless numbers do not violate the TCPA when the called party provides the number to a creditor in connection with an existing debt. The court agreed with the defendant’s argument that under the Hobbs Act, 28 U.S.C. § 2342, the federal courts of appeal have exclusive jurisdiction over all final FCC orders, and therefore the court had no jurisdiction to review the FCC’s January 4, 2008 declaratory ruling. Accordingly, the court indicated that its May 20, 2008 order must be vacated.

The court also denied plaintiff’s motion for leave to amend her complaint and dismissed her action without prejudice. The plaintiff had moved the court to name as new class representative a borrower’s reference who the defendant allegedly called at a cell phone number that the reference never provided to the defendant. The plaintiff argued that this person would represent a class of persons who received autodialed or prerecorded message calls from the defendant at cell phone numbers that the called parties did not provide to the defendant. According to the plaintiff, the claims of this class would not be barred by the FCC declaratory ruling. The court indicated, however, that the plaintiff was attempting to fundamentally change the lawsuit by seeking a recovery for such people and that it would be more appropriate for a new lawsuit to be filed on behalf of a class that does not include claims by borrowers who were called at cell phone numbers that they provided to the defendant.

Mike Tomkies and Charles Gall