Jiminez v. Credit One Bank, N.A.

Background

Alejandro Jiminez brought claims under the Telephone Consumer Protection Act, a federal law restricting certain automated calls to cellphones, against Credit One Bank, N.A., NCO Financial Systems, Inc., and Alorica, Inc. The defendants were involved in calls attempting to collect an unpaid Credit One credit-card balance owed by an individual identified in the opinion as “Ms. Doe.”

Ms. Doe had listed the phone number at issue when applying for her Credit One account. By the time the calls were made, however, the number belonged to Jiminez, who had never been a Credit One cardholder and had no prior relationship with the bank apart from receiving the calls. Between January 2017 and March 27, 2017, the collection operation placed more than 300 calls to the number, although the parties disputed the precise number of calls received and the number that connected to a live person.

The calls were made through LiveVox 3.2 and its Quick Connect feature. An agent uploaded a curated list of phone numbers supplied by Credit One, and LiveVox called numbers from that list. The system used an algorithm to determine how many calls to place based on the number of available customer-service representatives, but it did not generate phone numbers on its own.

Earlier Proceedings and Remand

In March 2019, this Court granted Jiminez’s motion for summary judgment, finding that LiveVox was an automatic telephone dialing system under the Telephone Consumer Protection Act. The Court relied in part on Federal Communications Commission orders concerning predictive dialers.

While the defendants’ appeal was pending, the Supreme Court decided Facebook v. Duguid. The Supreme Court held that equipment qualifies as an automatic telephone dialing system only if it has the capacity to use a random or sequential number generator to store or produce numbers to be called. The Second Circuit then vacated this Court’s earlier judgment and remanded the case for further proceedings consistent with that decision.

Legal Standard

Summary judgment is appropriate when there is no genuine dispute about a material fact and the moving party is entitled to judgment as a matter of law. A fact is material if it could affect the outcome, and a dispute is genuine if a reasonable jury could decide for the opposing party.

To establish a claim under the Telephone Consumer Protection Act, a plaintiff must show that a call was made to a cellphone, that an automatic telephone dialing system was used, and that the recipient had not given prior consent.

Court’s Analysis

The Court held that the Supreme Court’s interpretation of “automatic telephone dialing system” controlled, rather than the earlier Federal Communications Commission approach to predictive dialers. The Court rejected Jiminez’s argument that Facebook v. Duguid was different because it concerned text messages rather than phone calls, explaining that the statute covers both.

The parties disputed whether it mattered that LiveVox might have had the capacity to store or produce randomly or sequentially generated numbers, even though it did not do so for the calls at issue. The Court found the Third Circuit’s reasoning in Panzarella v. Navient Solutions, Inc. persuasive. Under that reasoning, a claim requires proof that the challenged calls actually used an automatic telephone dialing system’s random- or sequential-number-generating function.

The Court concluded that, even if LiveVox theoretically had the capacity to use random or sequential numbers, the undisputed evidence showed that the defendants called numbers from Credit One’s curated, pre-approved customer list. Because the defendants did not use random or sequential number generation to make the calls to Jiminez, the Court found that the calls did not employ the type of dialing system covered by the statute. Any dispute about LiveVox’s theoretical capacity was therefore not material.

Disposition

Judge Laura Taylor Swain granted the defendants’ motions for summary judgment in their entirety. The Court directed the Clerk of Court to enter judgment, and the order resolved docket entries 166 and 172.