In Ossola, et al v. American Express Company, et al, the TCPA class action suit claims that AmEx is directly liable for TCPA damages even though AmEx did not make the phone calls at issue. The calls were placed by a third-party collection agency AmEx contracted to work the accounts. In a motion for partial summary judgment, AmEx argued it should not be held directly liable for actions it did not take.
On February 20, 2015, in Ossola, the U.S. District Court for the Northern District of Illinois disagreed with AmEx and denied its motion for partial summary judgment. The federal opinion stated, “[W]hether American Express itself actually placed the calls at issue is irrelevant.” The Ossola court relied on the opinion in Soppet, where the Seventh Circuit held that “[c]alls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.” Soppet v. Enhanced Recovery Company, LLC, 679 F.3d 637, 642 (7th Cir. 2012).
The Ossola opinion also referenced a 2008 FCC Order that stated calls placed by a third party collector on behalf of a creditor are treated as having been made by the creditor itself. In re Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 23 FCC Rcd. 559 ¶ 10 (Jan. 4, 2008).
The February 20, 2015 Ossola opinion was not a ruling on the merits of the case, but merely a rejection of AmEx’s motion for partial summary judgment. Therefore, the AmEx class action lawsuit will proceed and AmEx will have further opportunity to defend the allegations of AmEx’s direct liability pursuant to the TCPA.
This case is an important example of why creditors must establish express consent from consumers to call consumer cell phones and/or leave automated messages. The best way to document TCPA consent is to include such language in the underlying consumer credit agreement. The collection industry must continue efforts to educate creditor-clients about the critical nature of obtaining express consent to avoid TCPA liability and the firm encourages all our clients to have this conversation with your creditor-clients. Please contact Chad if you would like more information. firstname.lastname@example.org.
The firm will monitor the litigation and update our clients with any important developments.