Schick v. Caliber Home Loans, Inc.

Background

Deborah Schick sued Caliber Home Loans, Inc., and others under the Telephone Consumer Protection Act (TCPA). She alleged that she received telemarketing calls promoting Caliber and its products from Driving Force Media. She also alleged that Caliber hired a company that used Driving Force Media to make calls for Caliber, knew Driving Force Media was making the calls, restricted the scope of the calls, instructed it to call certain numbers, and failed to stop the calls.

Schick alleged two TCPA violations. First, she claimed that the calls were made using an automatic telephone dialing system. Second, she claimed that calls were made to a number listed on the do-not-call list without her consent. She alleged that her number had been on that list since 2004 and that she received two calls promoting Caliber and its products in November 2019.

Court’s Analysis

The court held that Schick’s allegations could support a conclusion that Driving Force Media was Caliber’s agent. The court explained that an agency relationship could be shown through ratification—Caliber’s acceptance of the conduct by failing to stop Driving Force Media despite knowing, or deliberately ignoring, that it was acting for Caliber. The allegations that Schick received Caliber-related calls and spoke with a Caliber employee during one call also supported the agency theory at the pleading stage.

The court found the allegations sufficient to state both TCPA claims. For the automatic-dialing claim, Schick alleged that she said hello several times after answering each call but heard a distinctive click and pause instead of a normal human response. The court said these facts could support an inference that the calls were placed using equipment capable of automatically dialing stored or generated numbers.

For the do-not-call claim, the court found sufficient Schick’s allegations that her number had been on the do-not-call list since 2004, that she received two calls promoting Caliber in November 2019, and that she had not consented to the calls.

Ruling

The court denied Caliber’s motion to dismiss. It also denied Caliber’s motion for a stay pending further Federal Communications Commission rulemaking on the definition of an automatic telephone dialing system. The court denied as moot Caliber’s motion for a stay pending the Supreme Court’s decision in Barr v. American Association of Political Consultants, Inc. A case-management conference was set for August 5, 2020, with a joint case-management statement due seven days beforehand.