The year was 2012. I was then a tender associate just 33 years of age, but already serving as national TCPA counsel for a major bank. In that role I dutifully reviewed every TCPA decision as it came down every day—just as I do now—but without the fanfare or fancy platform.
As I reviewed the decisions one chilly October day, the case of Meyer v. Portfolio Recovery Assocs., LLC, 696 F. 3d 943, 948 (9th Cir. 2012) came to my attention. My eyes lit up as I read the opinion. The Ninth Circuit had held—in a soon-to-be-published decision addressing TCPA class action certification—that TCPA consent in the debt collection context was only obtainable where a customer provided a phone number at the time a debt first arose. As the panel wrote: “Pursuant to the FCC ruling, prior express consent is deemed granted only if the wireless telephone number was provided by the consumer to the creditor, and only if it was provided at the time of the transaction that resulted in the debt at issue.” The Opinion concluded “[C]onsumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA.” Meyer at *949. Such a rule, I knew, could lead to disaster for the industry. Moreover it was clear to me that the panel did not have to go so far in its ruling to reach the result it sought.
Acting swiftly I reached out to Scott Hyman and Jan Chilton—highly capable partners at my then-firm Severson & Werson—who I knew to be worthy fellows capable of quickly absorbing the impact of the ruling for our clients and TCPAWorld as a whole. I was not disappointed. With appropriate urgency, they, in turn, looped in Mark Kenney—another capable litigator at Severson—who had a deep relationship with my now-friends over at the American Financial Services Association (“AFSA”) and the California Financial Services Association (“CFSA”). These associations leaped at the opportunity to help clean up the Ninth Circuit’s order and before the month of October had closed an Amicus Brief requesting modification to the order had been filed. The introduction began: “[Amici] request that the Court reconsider and remove from its opinion two sentences (the “Two Sentences”) which are incorrect, for the reasons stated in this brief, unnecessary to the Court’s decision, and potentially troublesome for creditors and debt collectors.” See Amici Brief re Meyer.
Two months later the Ninth Circuit denied the Appellant’s petition for re-hearing—which the Amici brief had technically supported—but granted precisely the relief sought in the amici brief: “The opinion filed on October 12, 2012, and appearing at 696 F.3d 943, is amended as follows: On page 12258 of the slip opinion, replace the final two sentences of the third paragraph with the following language: Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564–65. PRA did not show a single instance where express consent was given before the call was placed. Id. at 565.” The “Two Sentences” were gone.
And so, TCPAWorld was saved. For a little while at least.
I am reminded of this tale by the recent decision Brown v. DirecTV, LLC, Case No. CV 13-1170 DMG (Ex), 2019 U.S. Dist. LEXIS 54831 (C.D. Cal. March 29, 2019). There the Plaintiff challenged—all these years later—that consent cannot be granted to a creditor unless a number is provided on the original credit application. My goodness. Get with the times. In rejecting that argument, the Court notes at footnote 3 the following: “In its October 2012 opinion, the Ninth Circuit in Meyer concluded, ‘consumers who provided their cellular telephone numbers to creditors after the time of the original transaction are not deemed to have consented to be contacted at those numbers for purposes of the TCPA….’ However, shortly thereafter, the court superseded its October 2012 opinion and replaced the sentence above to read: ‘[p]ursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed.’ Together, this indicates that for the purposes of the TCPA, the Ninth Circuit did not intend to narrow prior express consent to call a cellular phone to occur only if a customer provided that number on an initial transaction or application for service.’”
The Brown court went on to certify the case—a decision I will break down shortly—but the narrowly-averted disaster of “application-only” consent in that case had its roots all the way back in 2012.