JACKSON v. PMAB, LLC
1:16-cv-01705
D.N.J.Sep 28, 2017Background
- Plaintiff Erica Jackson sued PMAB, LLC under the TCPA alleging 111 automated calls to her cellular number between April 2014 and December 2015 without her consent; TCPA claim remained the only claim at issue.
- PMAB does not dispute making the calls or that an ATDS was used; it contends it had consent because Cochran (Jackson’s boyfriend) provided Jackson’s number to Inspira during intake.
- Jackson’s phone number is her cellular line; she does not pay Cochran’s phone bills and asserts she did not authorize Cochran to give her number to Inspira or PMAB.
- Cochran and Jackson give conflicting testimony about the scope of Cochran’s authority to use or provide Jackson’s number (Cochran says he had permission to provide it for Inspira contact; Jackson says Cochran could use her phone only in limited emergency circumstances and only with permission and in her presence).
- The creditor (PMAB) bears the burden to prove prior express consent under the TCPA; the FCC’s 2008 ruling instructs that consent exists when the called party knowingly provides the wireless number in connection with the debt.
- Court denied both parties’ motions for summary judgment on liability due to genuine disputed facts about consent; granted PMAB partial summary judgment that there was no willful/knowing violation (treble damages) because the record lacked evidence of intentional misconduct; denied PMAB’s motion for leave to file a sur-reply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PMAB had prior express consent to call Jackson’s cell | Jackson: she never gave consent and Cochran lacked authority to provide her number | PMAB: Cochran provided Jackson’s number during Inspira intake and had permission to do so | Denied summary judgment to both — material factual disputes about scope of consent preclude summary judgment on liability |
| Whether consent can be imputed from Cochran’s provision of the number | Jackson: Cochran’s limited, conditional permission (emergency-only, with permission/presence) does not equal blanket consent | PMAB: Cochran’s act of providing the number established consent for collection calls | Court held that credibility and factual disputes about Cochran’s authority mirror Osorio and preclude summary judgment for PMAB |
| Whether PMAB’s violations (if any) were willful/knowing (treble damages) | Jackson: requests treble damages for knowing/willful violations | PMAB: any use of the number was non-willful given Cochran’s apparent authority and record ambiguity | Court granted summary judgment to PMAB on willfulness; no evidence supported treble damages |
Key Cases Cited
- Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir.) (discusses TCPA consent and creditor liability)
- Leyse v. Bank of Am. Nat. Ass'n, 804 F.3d 316 (3d Cir.) (called party is the actual recipient; consent analysis)
- Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368 (U.S.) (federal jurisdiction and TCPA framework)
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.) (disputed authority to list another’s cell number precludes summary judgment)
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir.) (called party defined as subscriber of number at time of call)
- Evankavitch v. Green Tree Servicing, LLC, 793 F.3d 355 (3d Cir.) (creditor bears burden to show prior express consent)
- Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110 (11th Cir.) (discusses FCC guidance on consent)