Justin Maghen v. Quicken Loans Inc.
680 F. App'x 554
| 9th Cir. | 2017Background
- Maghen received calls on Feb 4, 2014 after submitting a refinancing inquiry through LendingTree; LendingTree’s Terms of Use disclosed that network lenders may call on recorded lines.
- Maghen had agreed to LendingTree’s Terms of Use, which put him on notice that calls from network lenders like Quicken Loans might be recorded.
- When Quicken Loans called, the employee identified the company and the purpose immediately and stated the company records calls for quality assurance; Maghen stayed on the line and replied “Okay.”
- Maghen sued under Cal. Penal Code § 632.7(a), alleging Quicken Loans unlawfully recorded calls made to cellular or cordless phones without consent.
- The district court granted summary judgment for Quicken Loans; the court of appeals affirmed that Maghen consented and therefore no § 632.7(a) violation occurred.
- Quicken Loans’ related counterclaim seeking a broader declaration that “service-observing” calls are exempt was partly granted (consent issue) and the remainder dismissed as moot because no live controversy remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Quicken Loans violated Cal. Penal Code § 632.7(a) by recording calls to Maghen | Maghen argued the calls were recorded without consent and thus violated § 632.7(a) | Quicken Loans argued Maghen consented via LendingTree’s Terms of Use and the agent’s contemporaneous notice that calls are recorded | Held: No violation — Maghen consented (told at outset and replied/continued on call) |
| Whether a recorded-call exception for “service-observing” purposes should be declared | Maghen opposed any broad declaration exempting service-observing calls | Quicken Loans sought declaration that § 632.7(a) does not apply to service-observing calls | Held: Request dismissed as moot because consent resolved the dispute; no live case/controversy for advisory ruling |
Key Cases Cited
- Kearney v. Salomon Smith Barney, Inc., 137 P.3d 914 (Cal. 2006) (business advising parties at outset that calls may be recorded negates § 632.7(a) claim)
- Already, LLC v. Nike, Inc., 133 S. Ct. 721 (U.S. 2013) (mootness doctrine: dispute must remain live for Article III jurisdiction)
- Murphy v. Hunt, 455 U.S. 478 (1982) (definition of mootness and live controversy requirement)
- Golden v. Zwickler, 394 U.S. 103 (1969) (federal courts may not issue advisory opinions)
- Protectmarriage.com–Yes on 8 v. Bowen, 752 F.3d 827 (9th Cir. 2014) (discussion of "capable of repetition, yet evading review" exception)