Consumer Crusade, Inc. v. Affordable Health Care Solutions, Inc.
2005 WL 2046057
Colo. Ct. App.
2005
Check Treatment

*1 litigation strategies to determine with Medina’s contention that the court erro- parties’ neously Azar. would be offered at trial. relied on what evidence Berry, supra. The order is affirmed. policy Berry, the term life insurance aspects pertinent in all forms were identical Judge Judge CARPARELLI and and, variations, with minor all the to the case PICCONE concur. annual policy forms addressed the and modal only exception premium structure. The re- just

lated to forms issued one state and of that

the trial court excluded residents Although from the class. most applicant

application forms allowed monthly, quarterly,

pay premium semi- annually,

annually, or none of the forms specific payment of each vided the amount CRUSADE, INC., CONSUMER modes, among the differences and none de- corporation, a Colorado yearly the difference cost as an scribed Plaintiff-Appellant, percentage interest or rate. annual only being single In addition to there form, deposition testimony from

contract AFFORDABLE HEALTH CARE SOLU agents established that four different sales TIONS, INC., corpora a California uniformly agents were trained and all the tion, Defendant-Appellee. jobs in performed their a similar manner. No. 04CA1839. Berry, supra. court also certified nation- Appeals, Colorado Court of Enfield class, there, Berry, as in the term

wide II. Div. application policy forms and forms were life Aug. Line, “essentially identical.” Old Enfield Co.,supra, P.3d at 1053. Ins.

Accordingly, the trial court here did not concluding that Medi-

abuse its discretion requirements

na failed to establish that the 23(b)(3) met, had

of C.R.C.P. been and there-

fore, appro- of class certification was denial

priate.

III. Trial Court’s Reliance Principles

on Tort that the trial court

Medina contends erred

by implicitly relying ap- on the New Mexico

pellate court’s decision in Azar v. Prudential America, Company

Insurance 133 N.M. (Ct.App.2003), 68 P.3d 909 and because partially based its decision on the need to testimony

consider the of numerous insur- agents.

ance While the court’s statement

regarding agent testimony could be con- denying

strued indicate was claim,

certification based on a the court tort denying

did not mention Azar in its order certification, therefore, disagree

class *2 Firm, P.C., Demirali,

Demirali Law A.M. Denver, Colorado, for Plaintiff-Appellant. P.C., Ridley, Richilano & L. Patrick Rid- ley, Fishman, Denver, Colorado, T. Robert for Defendant-Appellee.

WEBB, J. (Con-

Plaintiff, Crusade, Consumer Inc. sumer), appeals judgment dismissing defendant, complaint against Affordable Solutions, (Affordable), Health Care Inc. subject jurisdiction. lack of matter We re- verse and remand proceedings. for further complaint alleged Consumer’s Afford- able had sent unsolicited advertisements (fax) via persons facsimile the State Colorado in violation of 47 U.S.C. (TCPA). Telephone Consumer Act Protection assignments claims, recipients’ Based on sought damages, costs, Consumer and an injunction against Affordable. entirety give provisions in their effect complaint dismiss the Affordable moved County 12(b)(1) 12(b)(5) every contained therein. Bd. assert- word C.R.C.P. Assocs., Inc., relevant, the trial court Comm’rs v. Vail ing, as here (Colo.2001). *3 a subject to hear matter lacked According to TCPA. claim private under “It for The states: shall be unlawful TCPA Affordable, the General because States, any person the United or within regulating a unsolicited enacted statute had recip- if the person the United States outside adoption advertising after the of fax ... use is to ient within United States 133, TCPA, Laws ch. see Colo. Sess. machine, computer, facsimile telephone at was less restrictive § which 6-1-105 an adver- or to send unsolicited other device act, deprived this statute the federal than telephone machine.” tisement to a facsimile jurisdiction to of entertain courts Colorado 227(b)(1)(C). § 47 U.S.C. actions under the TCPA. private The creates least a conditional statute that, until the The trial court concluded action violation of its private right of for make amended 2004 to state statute was provisions: TCPA, § see 6-1- specific reference to 702(1)(c), C.R.S.2004, may, person entity per- had A Colorado courts or otherwise if private by hear such ac laws or court a lacked to mitted rules of State, that bring appropriate sent the faxes at in an court of tions. Because Affordable court dismissed Consum State— issue complaint. er’s (A) on this an action based a violation of regulations prescribed or the subsection

I. enjoin to such viola- under this subsection tion, that the is parties agree TCPA how it ambiguous, dispute should be (B) action to recover for actual mone- interpreted private as actions. con to We violation, tary a or to re- loss from such state courts have over such clude damages for each such viola- ceive $500 Clause, U.S. actions under the tion, greater, whichever is or Const., VI, art. cl. and the TCPA does not (C) such actions. both jurisdiction, assuming even that limit this 277(b)(3)(emphasis supplied). could so. do action, presented to a When with dismissal In addition subject may through matter under TCPA enforced an action lack of be 12(b)(1), attorney brought by any review the trial court’s C.R.C.P. we Lanier, Murphey clear error federal v. 204 F.3d factual determinations court. (9th Cir.2000). However, have legal conclusions under a de courts standard its City County & TCPA be enforced Egle novo standard. v. concluded that the cannot Denver, See, (Colo.App.2004); e.g., by private Baze in federal court. 93 P.3d 609 action Div., Lanier, Lottery supra; Realty Murphey 64 P.3d 876 v. Foxhall more Colo. State Here, case (Colo.App.2002). Offices, turns on Law Inc. v. Telecommunications (2d Servs., Ltd., statutory we de Cir. interpretation, which review Premium F.3d (Colo. 1998). Franklin, Vigil v. 103 P.3d novo.

2004). “[Njothing in provides: also TCPA statute, regulations prescribed this section or in the interpreting

When we preempt any shall State construe under this section language, first look we imposes law more intrastate language if is clear and unam that restrictive as written on, However, language ambig requirements regulations or which biguous. if the is or of, uous, telephone facsimile legislative history prohibits ... the use rely on to send legislature’s City intent. Au machines or other electronic devices discern Comm’rs, 47 U.S.C. County 198 unsolicited advertisements.” rora v. Bd. 227(e)(1)(A) (Colo.1996). statutory (emphasis supplied). construe must We actions, parties phrase vate agree with the TCPA unless and until We the state actions, concerning private per steps, legislation takes affirmative either rule, or the laws rules of court court mitted exercise State,” ambiguous. Only view, court has one Applying actions. this until the clear, without this albeit found Colorado statute was amended in no Leasing, explanation. Inc. action under the TCPA could Mfrs. Autoflex (Tex. 815, 817 Leasing, 16 S.W.3d prosecuted Auto in the courts. Colorado App.2000). Other have ascribed one courts However, no other has adopted interpreta different inconsistent three interpretation, and has criti been Autoflex phrase. to this tions misconstruing cized as the federal on cases *4 which it Accounting relied. See Outsourc II. ing, LLC. v. Pers. Verizon Wireless Commu interpretations We examine each of those L.P., nications, (M.D.La. F.Supp.2d 329 789 Clause, in light Supremacy the which 2004). interpretation This “would like most constitution, vides: “This and the laws the ly Amendment,” run afoul of the Tenth be pursu- in United States which shall be made legislation. cause it mandates state Account ... supreme ance thereof shall the law of ing Outsourcing, LLC. v. Verizon Wireless land; judges every and the state shall Communications, L.P., Pers. supra, 329 thereby; anything bound the constitu- F.Supp.2d contrary tion or laws of state to the legislative history The indicates that notwithstanding.” TCPA was enacted because several states Supremacy requires Clause adopted legislation regulating had unsolicited yield state it conflicts federal law when with faxes, regu- effective enforcement such Hartman, 721, law. Middleton v. lations hindered the fax was senders’ use (Colo.2002). Moreover, “charges 731 communications, jurisdiction of interstate responsibility a coordinate to en courts with Congress. By adopt- over which is vested in according regular force that law to their ing Congress legislation, federal intended Rose, procedure,” Howlett v. 496 modes of loophole. close this 356, 367, 2430, 2438, S.Ct. U.S. 110 110 purpose, Given this we doubt that Con (1990), Congress 332 L.Ed.2d unless dictates require gress would the states to addi Freight Sys., otherwise. Yellow Inc. v. Don tional rules of laws or enable claims 1566, 820, nelly, 494 110 U.S. S.Ct. 108 TCPA to be enforced in then- (1990). 834 L.Ed.2d courts. See Inc. v. GTE Mobil However, federal law must take Houston, Inc., 365, net 135 S.W.3d them,” state courts “as it finds because 11, (Tex.App.2004)(remew granted Mar. great states “have latitude to establish the 2005)(there no reason conclude own structure their Congress structured the TCPA in an Rose, supra, courts.” Howlett v. 496 U.S. at require inefficient manner as to states to 372, Thus, 110 S.Ct. at 2441. a state legislation to enact allow their courts to hear decline to exercise over federal claims). those judicial by applying claim neutral rule of Katt, 386, administration. Testa 330 U.S. Moreover, ju state courts of (1947). 67 S.Ct. 91 L.Ed. presumed risdiction are to have Levitt, federal claims. over Tafflin A. U.S. 110 S.Ct. L.Ed.2d (1990). Leasing, only Inc. v. presumption This can be rebut Autoflex Manufactur- “by statutory directive, by Leasing, supra, explicit ers Auto court in- an ted terpreted implication legislative permitted” otherwise from his unmistakable provision. “opt tory, as an in” This inter- clear incompatibility between pretation Congress assumes that intended to inter state-court federal deprive Corp., pri- state courts of v. Mobil ests.” Co. Oil Gulf Offshore 2870, 2875, 473, 478, of the United States Con 101 S.Ct. Clause

453 U.S. Architects, (1981). stitution,” R.A. Ponte Ltd. v. In L.Ed.2d Alert, Inc., 382 Md. 857 A.2d vestors’ nothing ambiguous lan- We discern (2004), by allowing states to close their history legislative or its guage of the TCPA claims for which courts to federal satisfy either the first or second that would provided no federal forum. See Testa v. Moreover, legislative this test. prongs of Katt, Early adopting opt in supra. cases Congressional intent to facili- history shows Realty Law interpretation, such as Foxhall regulation of unsolicited fax adver- tate state Offices, supra, did not address this constitu tisements, negates prong. the third tional issue. inferring Hence, no we discern basis prior approval, and there- condition C. reject interpretation. fore interpreta

In contrast to either of these tions, interpreted B. the “if a few courts have merely permitted” phrase as rejected majority of courts have also acknowledgement by Congress “that states and concluded that *5 right the to structure their own court have “opt question establishes an out” phrase systems obligat and that state courts are not interpretation, the process. Under change procedural ed to their rules to accom authorizes a state to refuse to enter phrase modate claims.” v. Chase TCPA Schulman actions, only by affir tain TCPA Bank, A.D.2d 710 Manhattan 268 doing or court rule so. legislation mative (2000); Accounting 372 accord N.Y.S.2d that, recognized have unless These courts Outsourcing, v. Verizon Wireless Pers. LLC. affirmatively opts out en of state Communications, L.P., supra; Condon actions, the Clause forcement (Fla.Dist.Ct. Inc., Depot, 855 So.2d 644 Office courts to enforce the require state would Architects, App.2003); R.A. Ltd. v. Ponte See, MacLeod, 441 e.g., Mulhern v. TCPA. Alert, Inc., supra. Under this Investors’ (2004); Reynolds 808 N.E.2d 778 Mass. view, pri can to no state refuse entertain Inc., Poultry, Foods & 79 v. Diamond action, vate TCPA but a state is not com (Mo.2002); v. Total Re Zelma S.W.3d pelled adopt special procedural rules for to Inc., N.J.Super. modeling, 756 A.2d such actions. (Law Div.2000); Inc. v. agree acknowledgment We with the inter- Houston, Inc., supra; see GTE Mobilnet of pretation following of the TCPA for the rea- Realty Offices, Law Inc. v. Tele also Foxhall sons. Servs., Ltd., Premium su communications Inst.,

pra; Int’l & Tech. Inc. v. Inacom Sci. First, analysis persuasive we find of (4th Communications, 106 F.3d 1146 legislative history in R.A. set forth Ponte Co., Cir.1997); Ins. Worsham Nationwide Architects, Alert, Inc., Ltd. v. Investors’ su Md.App. 772 A.2d pra. emphasized following That court (Spec.App.2001). Hollings, sponsor of comments Senator the TCPA: reject interpretation based We history legislative of the TCPA. This on the provision would to The allow consumers interpretation would lead to the anomalous bring against an action in court State a cause of conclusion created entity that violates the bill. The bill does regulation assist state of unsolicited action to not, constraints, because of constitutional faxes, precluded its assertion in federal dictate to the States which court each court, provided no federal administrative proper an State shall be the venue forum, but nevertheless authorized state action, legisla- as this is a matter for State citizens of deprive a forum for the tors to determine. by opting out. cause of action Ponte, (quoting supra, 857 A.2d at 13 30821). pres- Cong. on to “might also well Rec. The senator went This express hope under the his that states would facilitate problems ent serious constitutional by allowing Houston, Inc., claims them be consumer Inc. v. GTE Mobilnet su court, brought pra. “laws,” small phrase claims without refers to which attorney, legal might implicate jurisdiction, court,” fees because exceed and “rules of potential damages. implicate procedure, both of which are Hollings’s consistent with Senator stated de Noting that these comments es “contain sire that states make would enforcement of sentially legislative history” the whole easy these claims for consumers. See Ac phrase, the Ponte court concluded that counting Outsourcing, LLC. v. Verizon merely reflected established constitu L.P., Communications, Wireless Pers. supra, principles tional which states could (TCPA F.Supp.2d at 802 “leaves to the required procedures be court neces procedural jurisdictional states the ques sary to accommodate claims under federal surrounding tions each state’s enforcement of Ponte, supra, statutes. 857 A.2d at 14. The action”). private rights that, court further concluded while TCPA “proper left venue” to the determination rejecting argument, a similar the Ponte legislators, “[t]he substantive issue court, 15, explained “legisla- 857 A.2d at whether the federal of action cause should pertinent tive bodies often to the refer con- appropriate entertained state court principles legislation stitutional underlying legislators.” was not a matter left though not, even such references strict- Ponte, 14; supra, 857 A.2d at see also Schul ly, required.” cited other fed- Bank, supra. man v. Chase Manhattan containing general eral statutes references See, concerning e.g., the Commerce Clause. Second, language, permit- 247(b); 2000a(c). 18 U.S.C. court,” ted laws or suggests rules of jurisdictional focus on and venue Accordingly, we *6 that when conclude specific principles, legislative rather than a Congress private right created a of action opt decision to out of the TCPA. aWhile courts, prosecuted that could be state specific opt by decision to out could occur permitted by the laws or rules of legislative enactment, highly consider it State,” a acknowledging it was that would, unlikely by that “rules apply the states could their own rules court,” out opt particular of a federal statute. action, procedure to such an but it did not require intend Third, interpretation while of this further law or rule court to allow the now has been addressed for almost a prosecution of such actions in courts. cases, decade, many on the earlier Hence, requires Clause relied, recognize later have eases did exercise of such as the state acknowledgment interpretation as a means possess. courts avoiding problems the constitutional dis opt with opt cussed above both the out and conclusion, light of this we need not Inst., interpretations. See Int’l Sci. & Tech. affir- consider whether Colorado had taken Communications, Inc., Inc. v. supra; Inacom steps prohibit mative the district courts Realty Offices, Foxhall Law Inc. v. Telecom considering private from claims under the Servs., Ltd., supra. munications Premium TCPA at times Affordable sent the faxes interpretation An avoids constitutional in issue. Martinez, question is favored. See Clark v. reversed, judgment case is and the is U.S. S.Ct. 160 L.Ed.2d 734 remanded to the trial court for further (2005). ceedings opinion. consistent this with persuaded by We are not ar- Affordable’s gument acknowledgement interpre- that the Judge ROTHENBERG concurs. rejected tation should because it makes * phrase superfluous. King, See Judge specially Chair CRISWELL concurs. * 24-51-1105, Sitting assignment by Chief of the Justice under C.R.S.2004. VI, provisions 5(3), of Colo. art. Const. concurring. Assembly has not authorized the exercise of specially

Judge CRISWELL function, particular judicial this constitu majority that fully agree I with the provision empowers the courts to act. tional adju- have courts of this state (Colo.1981)(even A.W., In re P.2d 366 Telephone private claims under the dicate authorization, statutory without district court (TCPA). Protection Act I write Consumer jurisdiction respecting incompe mental has however, because I am convinced separately, tent). that, “acknowledgment” or the whether the pertinent pro- authority interpretation of the of the General “opt out” adopted, geographical federal act is the result limit viso of the Hence, court, affecting specific I see no need to district without the same. would be validity ap- jurisdiction of col gospel the of either overall the district courts accept as lectively, recognized. has been State v. Bor proach. (Colo.1988)(statute quez, 751 P.2d 639 limit that, majority, note like the I I should first ing appeal of automobile license revocation that, by reject adopting provi the notion county order to district court of of driver’s so, intended that no state court (stat residence); People Higa, supra see have over TCPA would authority ute did not limit court’s to conduct claims, the state took affirmative ac unless arguments jury closing deliberations requisite its courts with the tion to vest seat). county outside “opt interpretation jurisdiction. This in” Likewise, Assembly may the General limit by Leasing, adopted Inc. v. Manu Autoflex jurisdiction by granting the district court’s Leasing, Auto S.W.3d facturers jurisdiction to another court that the consti- unanimously reject (Tex.App.2000),has been People ed, tution authorized it to create. ex rel. opinion later a division of the even in a Morley, 234 P. Cruz Colo. Inc. v. GTE same court. See (1924). Houston, Inc., 135 S.W.3d Mobilnet of (review granted Mar. (Tex.App.2004) legislative body may Whether that restrict 2005) interpretation). (adopting limit the broad substantive granted over “all civil ... cases” However, reject- once by prevent- constitution to the district courts becomes, ed, my opinion, irrelevant *7 ing passing upon all from of them otherwise acknowledgment opt the or the out whether cognizable yet civil to claims has be decided. meaning proviso of the is view of the However, even if it is assumed that the Gen- opt if the out is adopted; even Assembly possesses authority, eral such one, correct the courts of this considered the jurisdiction may only by limit the courts’ the jurisdiction still have to entertain state would clear, plain, explicit language. use of and TCPA, private claims under the because the Borquez, supra; People Higa, v. v. See State Assembly has taken no Colorado General supra. jurisdiction. the steps to limit courts’ must, therefore, apply We this standard of jurisdiction of the in district courts explicitness considering whether the Gen- by the this state is established Colorado Con Assembly deprive eral intended to all Colora- VI, 9(1), § pro Const. art. stitution. Colo. pri- do district courts of to hear

vides: “The district courts shall be trial vate claims under the TCPA. jurisdiction, record with courts of original jurisdiction and shall have in all 1991, The TCPA was enacted in and in civil, cases, and probate, except criminal as Assembly 1997 the Colorado General first herein, provided and shall have legislation dealing enacted with unsolicited appellate pre such as 1997, fax transmissions. Colo. Sess. Laws ” (emphasis by supplied). law scribed 6-1-105(1)(I) 133, 500, § provided: ch. at grants jurisdiction provision person engages deceptive This that “is A in a trade when, unlimited, geographically practice per- substan- in the course of such both and 203, person ... tively.” People Higa, v. P.2d son’s business such solicits Hence, residing by a facsim- (Colo.App.1987). if the General consumer Colorado even 227(f)(1); including ile transmission without in the al courts. 47 Murphey v. (9th Lanier, Cir.2000). message telephone Hence, a toll-free facsimile F.3d 911 possible of recipient only number which the unsolicited the effect the initial statute notify may use upon transmission to the sender could have had interstate transmissions recipient any to proper not to transmit the further relates to the prosecu- forum for the transmission. tion unsolicited claim for violation the TCPA. In this statute was in a amended here, Second,

manner not relevant Colo. Sess. Laws the pro 1997 statute no contained 6-1-702(1)(b)(I) ch. expressly visions whatsoever addressing this 2004, however, Assembly question the General ex or referring only to the TCPA. The pressly to providing: asserting referred the TCPA basis original that this statute person engages deceptive “A prac trade the restricted remedies available to Colorado when, in person’s tice the such course residents under the TCPA is the substantive business, vocation, occupation, person or regulations difference between its and those Yet, ... just logical, [violates [the TCPA] U.S.C. sec. of the TCPA. it is if as not so, any promulgated to rule thereunder.” Sectionmore conclude that the General Assem -702(1)(c), bly 6-1 only regulate C.R.S.2004. intended intrastate differently transmissions from interstate that, by court recognized The trial enact- regu transmissions than to assume that this statute, ing Assembly the 2004 the General latory difference was also intended to restrict expressly pri- prosecution authorized the the of the Colorado courts under vate TCPA claims the Colorado courts. Indeed, the federal act. other courts have However, initial the Colorado statute was recognized that a mere substantive difference TCPA, adopted passage after between TCPA and a state statute does provisions it contained less restrictive than See, operate e.g., as an election. act: federal unsolicited faxes could be Architects, R.A. Ponte Ltd. v. Investors’ sent, long so as a in- toll-free number was Alert, Inc., (2004); 382 Md. 1A.2d allowing recipient cluded in the fax MacLeod, Mulhern v. 441 Mass. prohibit further For transmissions. these (2004); N.E.2d Inc. GTE reasons, trial court concluded that Houston, Inc., supra. Mobilnet of effect deprive of this initial 1997 act was to all Finally, district courts of over even if it assumed that I disagree TCPA claims. with this authority conclu- General has the to limit sion. granted the substantive courts, Colorado Constitution the district First, Congressional authority while plain explicit. to do so intent must deprives interstate commerce states Borquez, supra; People Higa, State v. authority legis- enact inconsistent *8 not, supra. The initial statute here did lation, Hartman, Middleton v. means, express any plain explicit such or (Colo.2002), Congress authorized cannot, therefore, intent. This statute adopt legislation containing states to “more interpreted depriving as district Colorado requirements regula- restrictive intrastate their courts of constitutional tions” than contained in TCPA. 47 alleged claims for entertain violations 227(e)(1)(A). Yet, nothing in the TCPA of the TCPA. purports to authorize the states to less regulations conclude, therefore, governing restrictive interstate I that the wheth- issue Therefore, original permitted” commerce. er the “if otherwise proviso best, was, applicable only purely merely statute acknowledgment TCPA was adopt special procedural intrastate transmissions. Even after need states not statute, adoption of the state the substantive rules for actions or allowed TCPA provisions regulate TCPA continued to states out of enforcement transmissions, all through private interstate and the TCPA Colorado actions need Attorney event, General could enforce TCPA’s be resolved this case. In either prohibitions through legal action in the feder- Colorado General has never opt out of these enforcement

elected to have al-

ceedings, and the Colorado courts adjudicate

ways possessed private claims. AND BANK TRUST COM

VALLEY corporation,

PANY, a Nebraska

Plaintiff-Appellee, FEDERAL COMMUNITY

HOLYOKE UNION, Defendant-

CREDIT

Appellant.

No. 04CA0200. Appeals, Court

Colorado

Div. I.

Aug. *9 LLP,

Rothgerber Lyons Johnson & Brent Cohen, Denver, Stephen Csajaghy, R. E. Colorado, Plaintiff-Appellee. Colorado, Wall, Holyoke, R. for De- Alvin fendant-Appellant.
MARQUEZ, J. security dispute priority
In this interests, defendant, Holyoke Community