Lynn Breslow v. Wells Fargo Bank, N.A.
755 F.3d 1265
11th Cir.2014Background
- Wells Fargo used an autodial system to place multiple calls to a cellular number registered to Lynn Breslow.
- Breslow was the account subscriber but the phone was used exclusively by her minor child, R.B.; Breslow did not consent to autodialed calls.
- Wells Fargo asserted it intended to reach a former customer who had previously provided that number and had consented to autodialed calls for collection purposes.
- District Court granted partial summary judgment for Breslow, holding the “called party” was the plaintiffs (Breslow and R.B.), not the intended recipient.
- Eleventh Circuit granted interlocutory appeal on the meaning of “called party” under the TCPA § 227(b)(1)(A)(iii).
- During this appeal, Eleventh Circuit precedent in Osorio held that “called party” means the subscriber to the cell phone service, binding subsequent panels.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “called party” under 47 U.S.C. § 227(b)(1)(A)(iii) | The called party is the actual subscriber/user of the number (Breslow) who did not consent | The called party is the intended recipient whose prior consent to autodialing precludes liability | Called party means the subscriber to the cell phone service; plaintiff (subscriber) did not consent, so TCPA violation stands |
Key Cases Cited
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) (held “called party” means the subscriber to the service)
- United States v. Hogan, 986 F.2d 1364 (11th Cir. 1993) (panel precedent is binding on subsequent panels absent en banc or Supreme Court reversal)
- Allison v. McGhan Med. Corp., 184 F.3d 1300 (11th Cir. 1999) (standard of review for summary judgment)