1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Megan Jacksen, No. CV-21-00087-PHX-DGC 9 Plaintiff, ORDER 10 v. 11
Chapman Scottsdale Autoplex, LLC, an 12 Arizona Limited Liability Company, d/b/a 13 Chapman Volkswagen Scottsdale Arizona,
14 Defendant. 15 Plaintiff Megan Jacksen alleges that Defendant Chapman Scottsdale Autoplex, 16 LLC (“Chapman”) made phone calls and sent a text message to her in violation of the 17 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227, et seq. Chapman 18 moves for summary judgment. Doc. 34. The motion is fully briefed (Docs. 35, 39, 40, 19 44, 45), and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); 20 LRCiv 7.2(f). The Court will grant the motion in part, deny it in part, and proceed with 21 the final phase of discovery and class certification. 22 I. Count 1. 23 Plaintiff abandoned Count 1 in response to Chapman’s motion. See Doc. 39 at 2. 24 The Court will enter summary judgment on Count 1. 25 II. Count 2. 26 A. Consent. 27 Count 2 alleges that Chapman violated 47 U.S.C. § 227 by placing six marketing 28 calls and one marketing text message to her cell phone in 2020, while her number was on 1 the national do-not-call registry. Section 227 is not violated, however, if the calls or text 2 message were made with Plaintiff’s “prior express invitation or permission.” 47 U.S.C. 3 § 227(a)(4). Chapman claims that Plaintiff granted permission for the calls and text when 4 she purchased a vehicle from Chapman in 2015 and executed a retail installment sale 5 contract. Doc. 34 at 4. The contract included this provision: 6 5. SERVICING AND COLLECTION CONTACTS 7 You agree that we may try to contact you in writing, by e-mail or using pre- 8 recorded/artificial voice messages, text messages, and automatic dialing 9 systems, as the law allows. You also agree that we may try to contact you in these and other ways at any address or telephone number you provide us, 10 even if the telephone number is a cell phone number or the contact results in a charge to you. 11 12 Id. at 5. 13 Plaintiff argues that this language is limited to servicing and collection calls and 14 does not authorize marketing calls. In support, Plaintiff cites FCC decisions and cases 15 from outside the Ninth Circuit. Chapman cites no case law on this point. 16 Fifteen minutes of Westlaw research by the undersigned judge found Ninth Circuit 17 cases that seriously undercut Chapman’s argument. In Van Patten v. Vertical Fitness 18 Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), the Ninth Circuit held that “an effective 19 consent is one that relates to the same subject matter as is covered by the challenged calls 20 or text messages.” Id. at 1044-45 (emphasis added). “[T]he consent must be considered 21 to relate to the type of transaction that evoked it.” Id. at 1045. The Ninth Circuit 22 reiterated this point in Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 792 (9th 23 Cir. 2018): “a call must relate to the reason why the called party provided his or her 24 phone number in the first place.” Id. at 793. 25 The consent provided by Plaintiff in the 2015 sales contract related to her purchase 26 of a vehicle and authorized telephone contacts related to servicing the vehicle and 27 28 1 collecting amounts owed. The consent does not relate to the purpose of the 2020 calls 2 and text message – marketing entirely new vehicles. 3 Granted, the Ninth Circuit decisions in Van Patten and Fober concern a slightly 4 different provision of the TCPA – 47 U.S.C. § 227(b)(1)(A), which prohibits automated 5 calls unless the caller has “the prior express consent of the called party.” The provision 6 at issue in this case, § 227(a)(4), prohibits solicitation calls unless the caller has the 7 “person’s prior express invitation or permission.” The Court can see no meaningful 8 difference between “prior express consent” and “prior express . . . permission.” Both 9 provisions permit contact with prior consent, and the Court is not inclined to undertake 10 additional detailed research and analysis on this issue when the language of the Ninth 11 Circuit cases is clear and the parties did not bother to cite them. Chapman has not shown 12 it is entitled to summary judgment on the basis of Plaintiff’s consent. 13 B. Safe Harbor. 14 Chapman also argues that it is entitled to summary judgment because it qualifies 15 for the safe harbor protection found in 47 C.F.R. § 64.1200(c)(2)(i). For two reasons, the 16 Court is not persuaded. 17 First, the safe harbor requires that the calls and text message at issue be made in 18 “error.” Id. Chapman contends that it satisfies this requirement because the contacts 19 were made with the erroneous understanding that Plaintiff had consented. But a case 20 relied on by Chapman – Mattson v. New Penn Fin., LLC, No. 3:18-CV-00990-YY, 2020 21 WL 6270907 (D. Or. Oct. 25, 2020) – found that “[a] question . . . remains concerning 22 whether Defendant called Plaintiff in error because ‘it had a good faith belief that it had 23 permission’ to call the number.” Id. at *4. The same factual question precludes summary 24 judgment here. The reasonableness of Chapman’s reliance on a consent form that did not 25 include marketing must be addressed in the full factual context of this case. 26 Second, even if an “error” did occur within the meaning of the regulations, 27 Chapman must show, among other requirements, that “[i]t uses a process to prevent 28 telephone solicitations to any telephone number on any list established pursuant to the 1 do-not-call rules, employing a version of the national do-not-call registry obtained from 2 the administrator of the registry no more than 31 days prior to the date any call is made, 3 and maintains records documenting this process.” 47 C.F.R. § 64.1200(c)(2)(i)(D). This 4 language clearly suggests that a caller must “employ” a relatively current version of the 5 national do-not-call list, and Chapman admits that it does not use the list. 6 Chapman cites Johansen v. Efinancial LLC, No. 2:20-CV-01351-DGE, 2022 WL 7 168170, at *5 (W.D. Wash. Jan. 18, 2022), for the proposition that it can comply with 8 this safe-harbor requirement by calling only those whom it reasonably believes have 9 consented to its calls. But this view conflates two different provisions of the safe harbor: 10 subsection (c)(2)(ii), which requires written consent, and subsection (c)(2)(i), which 11 requires an “error” and compliance with four specified standards (including use of the do- 12 not-call list). If a reasonable belief in consent can be relied upon to satisfy some or all of 13 the procedures set forth subsection (c)(2)(i), then that subsection would appear to be 14 entirely superfluous because consent alone is sufficient under (c)(2)(ii). Stated 15 differently, if there is consent, then the safe harbor applies because of subsection 16 (c)(2)(ii) and there is no need for subsection (c)(2)(i).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Megan Jacksen, No. CV-21-00087-PHX-DGC 9 Plaintiff, ORDER 10 v. 11
Chapman Scottsdale Autoplex, LLC, an 12 Arizona Limited Liability Company, d/b/a 13 Chapman Volkswagen Scottsdale Arizona,
14 Defendant. 15 Plaintiff Megan Jacksen alleges that Defendant Chapman Scottsdale Autoplex, 16 LLC (“Chapman”) made phone calls and sent a text message to her in violation of the 17 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. §§ 227, et seq. Chapman 18 moves for summary judgment. Doc. 34. The motion is fully briefed (Docs. 35, 39, 40, 19 44, 45), and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b); 20 LRCiv 7.2(f). The Court will grant the motion in part, deny it in part, and proceed with 21 the final phase of discovery and class certification. 22 I. Count 1. 23 Plaintiff abandoned Count 1 in response to Chapman’s motion. See Doc. 39 at 2. 24 The Court will enter summary judgment on Count 1. 25 II. Count 2. 26 A. Consent. 27 Count 2 alleges that Chapman violated 47 U.S.C. § 227 by placing six marketing 28 calls and one marketing text message to her cell phone in 2020, while her number was on 1 the national do-not-call registry. Section 227 is not violated, however, if the calls or text 2 message were made with Plaintiff’s “prior express invitation or permission.” 47 U.S.C. 3 § 227(a)(4). Chapman claims that Plaintiff granted permission for the calls and text when 4 she purchased a vehicle from Chapman in 2015 and executed a retail installment sale 5 contract. Doc. 34 at 4. The contract included this provision: 6 5. SERVICING AND COLLECTION CONTACTS 7 You agree that we may try to contact you in writing, by e-mail or using pre- 8 recorded/artificial voice messages, text messages, and automatic dialing 9 systems, as the law allows. You also agree that we may try to contact you in these and other ways at any address or telephone number you provide us, 10 even if the telephone number is a cell phone number or the contact results in a charge to you. 11 12 Id. at 5. 13 Plaintiff argues that this language is limited to servicing and collection calls and 14 does not authorize marketing calls. In support, Plaintiff cites FCC decisions and cases 15 from outside the Ninth Circuit. Chapman cites no case law on this point. 16 Fifteen minutes of Westlaw research by the undersigned judge found Ninth Circuit 17 cases that seriously undercut Chapman’s argument. In Van Patten v. Vertical Fitness 18 Grp., LLC, 847 F.3d 1037 (9th Cir. 2017), the Ninth Circuit held that “an effective 19 consent is one that relates to the same subject matter as is covered by the challenged calls 20 or text messages.” Id. at 1044-45 (emphasis added). “[T]he consent must be considered 21 to relate to the type of transaction that evoked it.” Id. at 1045. The Ninth Circuit 22 reiterated this point in Fober v. Mgmt. & Tech. Consultants, LLC, 886 F.3d 789, 792 (9th 23 Cir. 2018): “a call must relate to the reason why the called party provided his or her 24 phone number in the first place.” Id. at 793. 25 The consent provided by Plaintiff in the 2015 sales contract related to her purchase 26 of a vehicle and authorized telephone contacts related to servicing the vehicle and 27 28 1 collecting amounts owed. The consent does not relate to the purpose of the 2020 calls 2 and text message – marketing entirely new vehicles. 3 Granted, the Ninth Circuit decisions in Van Patten and Fober concern a slightly 4 different provision of the TCPA – 47 U.S.C. § 227(b)(1)(A), which prohibits automated 5 calls unless the caller has “the prior express consent of the called party.” The provision 6 at issue in this case, § 227(a)(4), prohibits solicitation calls unless the caller has the 7 “person’s prior express invitation or permission.” The Court can see no meaningful 8 difference between “prior express consent” and “prior express . . . permission.” Both 9 provisions permit contact with prior consent, and the Court is not inclined to undertake 10 additional detailed research and analysis on this issue when the language of the Ninth 11 Circuit cases is clear and the parties did not bother to cite them. Chapman has not shown 12 it is entitled to summary judgment on the basis of Plaintiff’s consent. 13 B. Safe Harbor. 14 Chapman also argues that it is entitled to summary judgment because it qualifies 15 for the safe harbor protection found in 47 C.F.R. § 64.1200(c)(2)(i). For two reasons, the 16 Court is not persuaded. 17 First, the safe harbor requires that the calls and text message at issue be made in 18 “error.” Id. Chapman contends that it satisfies this requirement because the contacts 19 were made with the erroneous understanding that Plaintiff had consented. But a case 20 relied on by Chapman – Mattson v. New Penn Fin., LLC, No. 3:18-CV-00990-YY, 2020 21 WL 6270907 (D. Or. Oct. 25, 2020) – found that “[a] question . . . remains concerning 22 whether Defendant called Plaintiff in error because ‘it had a good faith belief that it had 23 permission’ to call the number.” Id. at *4. The same factual question precludes summary 24 judgment here. The reasonableness of Chapman’s reliance on a consent form that did not 25 include marketing must be addressed in the full factual context of this case. 26 Second, even if an “error” did occur within the meaning of the regulations, 27 Chapman must show, among other requirements, that “[i]t uses a process to prevent 28 telephone solicitations to any telephone number on any list established pursuant to the 1 do-not-call rules, employing a version of the national do-not-call registry obtained from 2 the administrator of the registry no more than 31 days prior to the date any call is made, 3 and maintains records documenting this process.” 47 C.F.R. § 64.1200(c)(2)(i)(D). This 4 language clearly suggests that a caller must “employ” a relatively current version of the 5 national do-not-call list, and Chapman admits that it does not use the list. 6 Chapman cites Johansen v. Efinancial LLC, No. 2:20-CV-01351-DGE, 2022 WL 7 168170, at *5 (W.D. Wash. Jan. 18, 2022), for the proposition that it can comply with 8 this safe-harbor requirement by calling only those whom it reasonably believes have 9 consented to its calls. But this view conflates two different provisions of the safe harbor: 10 subsection (c)(2)(ii), which requires written consent, and subsection (c)(2)(i), which 11 requires an “error” and compliance with four specified standards (including use of the do- 12 not-call list). If a reasonable belief in consent can be relied upon to satisfy some or all of 13 the procedures set forth subsection (c)(2)(i), then that subsection would appear to be 14 entirely superfluous because consent alone is sufficient under (c)(2)(ii). Stated 15 differently, if there is consent, then the safe harbor applies because of subsection 16 (c)(2)(ii) and there is no need for subsection (c)(2)(i). The latter subsection thus seems to 17 apply only when consent does not exist.1 Because it is not clear to the Court that consent 18 can eliminate the express requirement in (c)(2)(i)(D) of “employing” a current version of 19 the do-not-call list, the Court cannot accept Chapman’s argument at this stage of the case. 20 The parties should be prepared to address this issue in greater detail in preparation for 21 trial. 22 III. Count 3. 23 Count 3 alleges that Chapman violated 47 C.F.R. § 64.1200(d). That provision 24 requires that Chapman implement procedures meeting the following minimum standards: 25 26 1 This view is supported by the existence of a third method for coming within the safe harbor – subsection (c)(2)(iii), which applies when the caller has a personal 27 relationship with the recipient. This method requires neither consent nor compliance with the specifics of subsection (c)(2)(i), suggesting that the safe harbor has three distinct 28 methods of qualifying. 1 (1) Written policy. Persons or entities making calls for telemarketing purposes must have a written policy, available upon demand, for 2 maintaining a do-not-call list. 3 (2) Training of personnel engaged in telemarketing. Personnel engaged in 4 any aspect of telemarketing must be informed and trained in the existence 5 and use of the do-not-call list. 6 Id. at § 1200(d)(1)-(2).2 Plaintiff alleges that Chapman violated these requirements by 7 “failure to implement a written policy for maintaining a do-not-call list and to train its 8 personnel engaged in telemarketing on the existence and use of the do-not-call-list.” 9 Doc. 17, ¶ 86. 10 With its motion for summary judgment, Chapman provides a declaration from 11 Rolland Schreiber, its general manager, outlining the written policy Chapman had in 12 place at the time of its contacts with Plaintiff and the training given to implement the 13 policy. Doc. 35-3, ¶¶ 12-25. 14 Plaintiff argues that the Court must disregard the Schreiber declaration because 15 Chapman’s Rule 30(b)(6) deponent spoke for the corporation and was unable to provide 16 the same relevant information: 17 Defendant’s binding 30(b)(6) testimony demonstrates that summary 18 judgment should be denied. At [the] deposition, Defendant could not 19 describe the training that employees undertake to comply with the Telemarketing Policy. PSOF ¶ 14; see also Pl’s Resp. to DSOF ¶¶ 53-58. 20 Defendant does not know when the Telemarketing Policy was written, who 21 created the policy, how long the policy had been in effect, or whether there existed other version of the policy. PSOF ¶ 15; see also Pl’s Resp. to 22 DSOF ¶ 45. Defendant could not describe what steps would be taken to 23 ensure that an individual who requests to no longer receive calls stops receiving calls. PSOF at ¶ 16; see also Pl’s Resp. to DSOF ¶ 48. Indeed, 24 Defendant’s employees can call a telephone number even if a telephone 25 number is marked within Defendant’s systems as do not call. PSOF at ¶ 17. 26
27 2 There are other requirements in this section, but these are the only two identified 28 in Plaintiff’s complaint as having been violated by Chapman. Doc. 17, ¶¶ 82-90. 1 Doc. 39 at 13-14. 2 The Court is not persuaded by Plaintiff’s argument. The Rule 30(b)(6) deposition 3 notice did not identify these specific topics as subjects for the deposition. Plaintiff’s 4 notice instead said only that the deponent should be prepared to address Chapman’s 5 “internal do not call policies and procedures” and its “policies and procedures for 6 complying with the National Do Not Call Registry.” Doc. 40-2 at 4. Plaintiff does not 7 dispute that the deponent testified Chapman has a policy for maintaining a do-not-call 8 list, and the deposition notice said nothing about training, steps to ensure that objecting 9 individuals no longer receive calls, or whether Chapman’s system prevents calls to do- 10 not-call numbers. 11 If a party wishes to bind a corporation to Rule 30(b)(6) testimony, it must serve a 12 sufficiently specific notice to apprise the corporation of the topics that will be covered. 13 The notice in this case did not apprise Chapman that these specific topics would be 14 covered, and the Court cannot conclude that it precludes Chapman from providing 15 evidence addressing these un-noticed subjects. As one court has correctly noted, “if the 16 deponent does not know the answer to questions outside the scope of the matters 17 described in the notice, then that is the examining party’s problem.” King v. Pratt & 18 Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995). 19 The Rule 30(b)(6) deponent specifically identified Mr. Schreiber as the person 20 who would know about training and related topics. Doc. 40-1 at 10. Plaintiff chose not 21 to depose Mr. Schreiber. Having made that choice, Plaintiff has no basis for objecting to 22 his declaration now. Because the declaration shows that the requirements of 47 C.F.R. 23 § 64.1200(d)(1)-(2) are satisfied, and Plaintiff presents no controverting evidence, the 24 Court will grant summary judgment on Count 3. 25 IT IS ORDERED: 26 1. Chapman’s motion for summary judgment is granted with respect to 27 Counts 1 and 3, and denied with respect to Count 2. 28 1 2. By January 20, 2023, the parties shall provide the Court with a jointly 2 proposed schedule for the remaining discovery in this case and briefing of a 3 motion for class certification. The Court then will either adopt the schedule 4 or set a telephone conference to discuss it with the parties. 5 Dated this 10th day of January, 2023. 6 Ly
8 David G. Campbell 9 Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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