Robocalls disturb privacy and tie up the phone system. Most consumers,
but not all, also are deprived of the right to question or otherwise deal with the telemarketer.
Between Friends By Sandra Bell-Lundy. Published on July 25, 2011. Used with permission.
The Washington legislature has enacted statutes to protect Washington Consumers from commercial telephone solicitation by use of an automatic dialing and announcing device (“ADAD”). Often these telephone calls are referred to as “robocalls.” Washington statutes include RCW 80.36.400 which provides, in part, that ADAD solicitation calls to Washington telephones violate the Washington Consumer Protection Act, RCW 19.86 et seq. In addition, RCW 80.36.390 provides protections for Washington non-business consumers who make “Do-Not-Call” requests of telemarketers, or ask the telemarketers to stop calling them. For a more in-depth explanation of Washington law, and how state law interrelates with federal law in this area, including the Telephone Consumer Protection Act (“TCPA”), see this article by Kim Williams in the Washington State Association for Justice’s June 2011 edition of Trial News.
Sometimes there can be a conflict between a state and a federal law, and the courts are asked to determine if the state’s law is overruled or negated by the federal law. In legal terms this is called “preemption.” As a court reviews the potential conflict, generally there is a presumption against preemption, in other words the state law is normally permitted to apply. In some cases, however, the federal law may be considered supreme. A common example relates to laws affecting interstate commerce and state laws that might interfere. Washington State has a law which forbids the making of solicitation robocalls, either to businesses or homes. Federal law permits business to business calls so long as two or more lines of the called business are not tied up. Robocallers have tried, without success, to “preempt” our state’s law so their calls to businesses would be permitted. For a more in-depth explanation of about this topic see this article by Rob Williamson in the Washington State Association for Justice’s June 2010 edition of Trial News.
Our client brought a claim against Chevy Chase Bank for charging fees in connection with paying off her loan when she refinanced her home. Banks and loan servicers often tack on suspect fees to the amount that must be paid to cancel the old loan. In our suit, Chevy Chase was able to obtain an order from the trial court that dismissed the claim on the grounds that her claims were “preempted” by federal law. This means that states and their citizens cannot seek redress for wrongful conduct by national banks that are regulated by a federal law. In our case, we argued to the Washington Supreme Court that the alleged conduct was not covered solely by federal law and state consumer protection and other laws should be enforced. The Supreme Court agreed in a decision (PDF) dated June 24, 2010. It is a powerful affirmation of the rights of citizens to enforce claims under state law.
After a class action is filed, it is necessary for the class representative to bring a motion requesting that the case be certified as a class action. Defendants resist certification in many ways. One strategy is to offer to pay the class representative the amount of her or his claim and then argue the class representative no longer has a valid complaint. Without a class representative, then, Defendants seek dismissal of the class action lawsuit. This strategy was rejected by Magistrate Judge James P. Donahue of the Federal Court in Seattle in a decision (PDF) dated November 2, 2010. The ruling is an important affirmation of the right of individuals to bring class actions on behalf of others with similar claims and a clear statement that “picking off” a class representative will not be permitted.
Judges Laura Inveen and Susan Craighead of the King County Superior Court have recently upheld the Washington ban on robo-call solicitations, rejecting a decision in early 2010 by Judge Benjamin Settle, a Federal judge in Tacoma. Judge Settle had ruled that only robo-calls that “initiated a conversation” with a live telemarketer were the target of the Washington ban, a decision that we have appealed. The Washington Attorney General has filed a brief in support of our appeal, agreeing that the decision of Judge Settle is wrong.
Talbots, Inc. made tens of thousands of robocalls to customers without their permission. Our firm brought a class action on behalf of persons who had received the calls under the Washington statute that forbids such solicitations. Talbots sought to dismiss the claims on the grounds that the statute only applied to calls that initiated a “conversation.” Judge Benjamin Settle in the Tacoma branch of the Federal Court granted Talbots’ motion.
We are appealing the decision of Judge Settle, and hope that the Washington Attorney General will assist. As Shannon Smith of the Attorney General’s office has stated, the decision of Judge Settle is a “very narrow interpretation of the statute, and it eviscerates the whole intent of the Legislature.”
Read more about this case in the Seattle Times (http://seattletimes NULL.nwsource NULL.com/html/localnews/2013067060_donotcall04m NULL.html).
King 5 recently ran a story about Dick Baron, one of their clients, who has been concerned about junk faxes, robocalls and, more recently, junk texts. Mr. Baron has served as a class representative because of his strong support of efforts to force telemarketers to obey the laws and stop the harassment and invasion of privacy involved with their constant marketing efforts. Under both federal and state law, blasters of faxes, texts and robocalls are liable for $500.00 for each illegal communication. Sometimes the marketing is permitted if the recipient has an established business relationship with the sender, but many businesses ignore the law and make the calls or send the faxes or texts because they are such an inexpensive way to sell their produces and make money.
This class action against many municipalities in Washington and two traffic camera companies was initially filed in state court. The camera companies removed the case to federal court, and it was assigned to the Honorable John Coughenour, a senior and well respected judge for the Western District of Washington. The defendants brought a motion to have the case dismissed, arguing that the fines which we claimed were excessive are permitted, and that the lawsuit itself should be barred because all members of the class received notices of infractions and had an opportunity, if they chose, to challenge the citations on any grounds. Judge Coughenour dismissed the action and we have appealed to the 9th Circuit Court of Appeals.
Several claims are pending against various businesses that make these irritating computer-generated solicitations to homes, businesses, and cell phones. Judge James Robart of the Western District denied a motion by Sprint for dismissal of our state law claim because it was “preempted” by federal law, and more recently Judge Robert Lasnik has issued a strong opinion that also affirms the right of the state of Washington to protect its citizens from these marketers.