Ally Financial Must Face Class Robocall Claim

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By Jimmy H. Koo

Ally Financial Inc. failed to shake off class claims that it violated the Telephone Consumer Protection Act by calling a consumer 22 times over the course of three months ( Tillman v. Ally Fin. Inc. , 2017 BL 158187, M.D. Fla., No: 2:16-cv-313-FtM-99CM, 5/12/17 ).

U.S. District Court for the Middle District of Florida May 11 rejected Ally’s argument that the plaintiff didn’t have standing under the TCPA because he wasn’t a “called party” under the statute.

“Being a ‘called party’ is only relevant to the determination of whether the call violates the substantive provision of the TCPA; the term does not impact who may bring a lawsuit for TCPA violations,” Judge John E. Steele said.

The court also rejected Ally’s argument that plaintiff doesn’t have standing because he didn’t suffer an injury. “Congress has prohibited the making of certain prohibited calls, and plaintiff has a right under the TCPA to be free of such prohibited calls,” the court said, finding that receiving such prohibited calls is an injury that Congress deemed as “a legally cognizable injury through the TCPA.”

The TCPA, 47 U.S.C. §227, prohibits the use of automated telephone dialing systems without the prior express consent of a consumer to receive unsolicited calls or text messages on a mobile phone.

According to plaintiff Donell Tillman’s complaint, in December 2015, he started receiving calls on his mobile phone from Ally, seeking to reach someone named Phillip Everett. Although Tillman notified Ally that he isn’t Everett and requested the company to stop calling him, Ally continued to call Tillman, often using artificial or prerecorded voice messages.

Seeking summary judgment, Ally argued that Tillman wasn’t a called party because Tillman shared the phone with his girlfriend, so he wasn’t the primary user of the mobile phone.

Rejecting the argument, the court said that “any ‘person’ whose interests fall within the zone of interests protected by the TCPA provision has statutory standing to bring a claim if there is a prohibited telephone call.”

Tillman is represented by The Consumer Protection Firm PLLC and Keogh Law Ltd.

To contact the reporter on this story: Jimmy H. Koo in Washington at jkoo@bna.com

To contact the editor responsible for this story: Donald Aplin at daplin@bna.com

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