Ramsey v. Receivables Performance Management, LLC
1:16-cv-01059
| S.D. Ohio | Dec 15, 2020Background
- Plaintiff Phillip Ramsey, guardian for his father, received Windstream bills after his father made unauthorized on-demand purchases; Ramsey canceled service and sent Windstream a November 16, 2014 letter revoking further communications.
- Windstream placed Ramsey’s accounts with Receivables Performance Management, LLC (RPM) in Feb–Mar 2015; Windstream did not forward Ramsey’s cease-contact letter to RPM.
- RPM used a PICK database and the Noble Systems predictive dialer in list-dialing mode; RPM designated Ramsey’s account as having "prior express consent," so it used list dialing rather than preview mode.
- Between February 20 and July 7, 2015, RPM placed 245 calls to Ramsey’s cell phone via the Noble predictive dialer.
- Procedural posture: cross motions for summary judgment; court found the Noble system is an ATDS under Sixth Circuit precedent, held RPM lacked prior express consent, awarded Ramsey statutory TCPA damages of $500 per call ($122,500), denied summary judgment on the OCSPA claim, and denied summary judgment as to individual defendant Howard George.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Noble predictive dialer is an ATDS | Noble is an ATDS because it stores lists of numbers and automatically dials them | Not an ATDS due to meaningful human intervention and lack of random/sequential number generation | Court: Yes — under Sixth Circuit's Allan interpretation, stored-number automatic dialing systems qualify as ATDS |
| Whether RPM had prior express consent to call Ramsey | Ramsey revoked consent via Nov. 16, 2014 letter; no consent to RPM | RPM relied on Windstream account data / agency theory that consent (or lack of notice) should be imputed or presumed | Court: No — revocation effective as to Windstream and RPM cannot rely on intermediary or assumption; RPM lacked prior express consent |
| Remedy / statutory damages under TCPA | $500 per unlawful call (or actual damages) | Contest liability/amount | Court: Awarded $500 x 245 calls = $122,500 in statutory damages to Ramsey |
| OCSPA claim (state-law unfair/deceptive practices) | TCPA violations constitute OCSPA violations; seeks statutory damages and fees | If TCPA fails, OCSPA fails; move to dismiss supplemental claim | Court: Genuine disputed facts remain as to whether TCPA violations equate to OCSPA violations; denied summary judgment to both sides on OCSPA issue |
| Personal liability of Howard George | George (CEO/founder) had managerial control and oversaw TCPA procedures; factual disputes exist warranting liability | George is merely RPM’s CEO with no personal involvement | Court: Genuine issues of material fact remain; denied summary judgment as to George |
Key Cases Cited
- Allan v. Pennsylvania Higher Educ. Assistance Agency, 968 F.3d 567 (6th Cir. 2020) (interpreting ATDS to include equipment that stores numbers and automatically dials them)
- ACA Int'l v. Federal Communications Comm'n, 885 F.3d 687 (D.C. Cir. 2018) (addressing FCC interpretations of the ATDS definition)
- Baisden v. Credit Adjustments, Inc., 813 F.3d 338 (6th Cir. 2016) (intermediary-conveyed consent can suffice when actually provided by the consumer)
- Charvat v. GVN Michigan, Inc., 561 F.3d 623 (6th Cir. 2009) (discussing TCPA violations as relevant to state consumer-protection claims)
- Marks v. Crunch San Diego, LLC, 904 F.3d 1041 (9th Cir. 2018) (construing statutory ATDS language in circuit split)