Thomas v. Dun & Bradstreet Credibility Corp.
100 F. Supp. 3d 937
C.D. Cal.2015Background
- Plaintiff Jeffrey A. Thomas, an Oregon resident and Executive Vice President of J and J Thomas, Inc., sues Dun & Bradstreet Credibility Corp. for TCPA and UCL violations.
- Defendant allegedly called Plaintiff’s cellular telephone throughout 2013 about business credit services without prior express consent.
- Plaintiff requested Defendant cease calls and place him on a do-not-call list on several occasions; calls allegedly continued.
- On October 7, 2013 Defendant called Plaintiff; Plaintiff sent a cease-and-desist letter on October 8, 2013 detailing efforts and referencing related subsidiaries.
- Plaintiff seeks TCPA damages, injunctive relief, and attorney’s fees; Defendant moves to dismiss under Rule 12(b)(6); the court denies the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TCPA standing as called party | Thomas is a called party under §227(b)(1)(A)(iii). | Thomas must be the current subscriber; the letter shows J & J Thomas, Inc. is the subscriber. | Thomas shown as called party; standing not dismissed. |
| Application of § 227(b)(1)(A)(iii) to business calls | Calls to Plaintiff’s cellular line fall under § 227(b)(1)(A)(iii) regardless of business context. | Section 227(b)(1)(A)(iii) should be limited to consumer calls; business calls are not covered. | Court declines to resolve scope; facts show calls could be to a residential line; claim survives. |
| Plaintiff plausibly alleged ATDS usage | Complaint alleges use of a predictive dialer and other autodialing capabilities; plausible ATDS use. | Allegations insufficient without more proof of ATDS. | Plausible ATDS usage plead; dismissal not appropriate at this stage. |
| UCL extraterritorial application | California law applies given Defendant’s California headquarters and conduct. | California law should not apply to an Oregon plaintiff absent compelling justification. | Extrinsic arguments not compelling; California law preliminarily applies. |
| UCL standing and derivative claim | Plaintiff’s alleged monetary loss from calls supports UCL standing. | Lack of statutory standing under the UCL; theory derivative of TCPA claims. | UCL standing sustained; claim remains viable. |
Key Cases Cited
- Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036 (9th Cir. 2012) (establishes elements for TCPA claims and standing considerations)
- Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637 (7th Cir. 2012) (called party meaning: current subscriber at time of call)