Harris v. World Financial Network National Bank
867 F. Supp. 2d 888
E.D. Mich.2012Background
- Harris sues WFNNB, Alliance Data Systems Corp., and Allied Data Systems for TCPA and MCPA violations.
- Alliance used an Avaya Predictive Dialing system to place debt-collection calls to Harris’s cell number ending in 1233.
- Morgan, a nonparty, opened three WFNNB accounts in 2010 and provided Harris’s 1233 number on those credit applications.
- Accounts were with Woman Within, Roaman’s, and Brylane Home; Morgan’s number was recorded for each account.
- Alliance called Harris’s number 56 times between August and October 2010, leaving three prerecorded messages.
- Plaintiff notified Alliance that the number was wrong on August 23 and September 4, 2010; subsequent calls continued for other Morgan accounts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue under TCPA | Harris is a called party and may sue for TCPA violations. | Only the specific called party has standing; Harris may be an incidental recipient. | Harris has standing to pursue TCPA claims. |
| Liability under § 227(b)(1)(A) for autodialed calls | Calls to Harris’s cell without consent via autodialer violate § 227(b)(1)(A). | Consent could be inferred from creditor records and Morgan’s application. | Plaintiff established § 227(b)(1)(A) liability; calls were made with an autodialer and without valid consent. |
| Willful/knowingly violations and treble damages | Violations after August 23, 2010 were willful; treble damages apply. | Willfulness should require knowing consent was withdrawn; pre-August 23 could be non-willful. | Violations after August 23, 2010 were willful; treble damages awarded for post-August 23 calls. |
| Admissibility of evidence related to consent and intent | Credit account screen prints show consent evidence and are relevant to intent. | Screen prints are hearsay or irrelevant to consent but may show intent. | Screen prints not considered as consent evidence but admissible as evidence of intent prior to August 23, 2010. |
| Scope of remaining claims | TCPA claims predominate; MCPA remains to be addressed. | Focus on TCPA issues; MCPA not central to ruling. | Only remaining claims are under the Michigan Collection Practices Act; TCPA relief granted in part. |
Key Cases Cited
- Alea London Ltd. v. American Home Services, Inc., 638 F.3d 768 (11th Cir. 2011) (treble damages require only 'knowing' conduct; strict liability otherwise)
- Mims v. Arrow Financial Services, LLC, 132 S. Ct. 740 (2012) (TCPA private right of action and remedies under statute)
- United States v. Weinstock, 153 F.3d 272 (6th Cir. 1998) (business records admissibility under 803(6))
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary judgment standard and burden-shifting framework)