Nigro v. Mercantile Adjustment Bureau, LLC
769 F.3d 804
| 2d Cir. | 2014Background
- Joan Thomas (Nigro’s mother‑in‑law) died in Sept. 2008; Nigro called National Grid to discontinue her electric service.
- During that call Nigro gave his mobile number so National Grid could disconnect service; he did not receive any bills and was not aware of a $68 balance on Thomas’s account.
- National Grid hired Mercantile Adjustment Bureau (MAB) to collect the unpaid balance; MAB placed 72 automated calls to Nigro’s mobile between Apr. 2010 and Jan. 2011.
- Nigro sued under the Telephone Consumer Protection Act (TCPA), alleging the automated calls to his cell were unlawful without his prior express consent.
- The district court granted summary judgment for MAB, holding Nigro had consented by giving his number to National Grid; Nigro appealed only the TCPA claim.
- The Second Circuit reversed, holding under the FCC’s interpretive ruling that Nigro did not provide his number “during the transaction that resulted in the debt owed,” so no consent existed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MAB’s automated calls to Nigro’s cell were made with “prior express consent” under the TCPA | Nigro: He did not consent to debt‑collection calls; he only gave his number to stop service and was not responsible for the debt. | MAB: Nigro voluntarily provided his number to National Grid and did not limit its use, so implied consent (or established business relationship) permits calls. | Reversed district court: No consent. Under FCC guidance, consent requires the number be provided during the transaction that created the debt; Nigro’s number was given after and unrelated to the debt. |
Key Cases Cited
- Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292 (2d Cir. 2003) (standard of review for summary judgment)
- Skidmore v. Swift & Co., 323 U.S. 134 (1944) (weight of agency interpretations under Skidmore deference)
- Union Carbide Corp. & Subsidiaries v. C.I.R., 697 F.3d 104 (2d Cir. 2012) (discussing Auer deference to agency interpretations)
- CE Design, Ltd. v. Prism Bus. Media, Inc., 606 F.3d 443 (7th Cir. 2010) (Hobbs Act/AOR review limits on agency orders)
- United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458 (8th Cir. 2000) (scope of appellate review over agency orders)