Breslow v. Wells Fargo Bank, N.A.
857 F. Supp. 2d 1316
S.D. Fla.2012Background
- Breslow sued Wells Fargo Bank, N.A. under TCPA § 227(b)(1)(A)(iii) for calls to a cellular number using an automated/ prerecorded system.
- Phone number 786-877-3516 was provided by Former Customer in connection with a Wells Fargo debt.
- The calls to the Cell Number occurred after August 2008 and targeted the Former Customer’s debt, not Breslow’s separate debt.
- Former Customer was the intended recipient of the calls and provided the Cell Number to Wells Fargo; Former Customer did not revoke consent.
- Wells Fargo argues the Former Customer’s consent controls; Breslow argues the called party is the actual recipient (Breslow/ Plaintiff).
- Court granted partial summary judgment for Breslow on liability, concluding the Plaintiffs were the called party under § 227(b)(1)(A)(iii) for cellular calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Who is the called party under § 227(b)(1)(A)(iii) for cellular calls? | Plaintiffs (Breslow) are the called party. | Former Customer is the called party due to consent from the debtor. | Plaintiffs are the called party; Wells Fargo liable. |
| Does prior express consent arise from the caller’s relationship with the intended recipient or actual recipient? | Consent must come from the actual recipient; no consent shown by Breslow. | Consent from Former Customer controls as the debtor and intended recipient. | Consent from Former Customer does not absolve liability; no express consent shown from Plaintiffs. |
| Does Meadows govern the interpretation of 'called party' for cellular calls? | Meadows is distinguishable; here cellular calls target a cellular line. | Meadows supports treating the intended recipient as called party. | Meadows distinguishable; here plaintiffs are called party. |
Key Cases Cited
- Meadows v. Franklin Collection Serv., Inc., 414 Fed.Appx. 230 (11th Cir. 2011) (called party for residential TCPA exemption; distinguishable from cellular calls)
- Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768 (11th Cir. 2011) (TCPA strict liability; prior express consent Burden on creditor to prove consent)
- Penzer v. Transp. Ins. Co., 545 F.3d 1311 (11th Cir. 2008) (prior express consent defense; TCPA is largely strict liability)