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Ninth Circuit Restores Class Action TCPA Telemarketing Lawsuit - Chesbro v. Best Buy Co.

July 9, 2013

Vincent Howard and our San Bernardino County consumer protection lawyers were pleased to read about a Telephone Consumer Protection Act victory for consumers that took place here in the Ninth Circuit. In Chesbro v. Best Buy Co., Michael Chesbro of Washington argued that Best Buy broke the Telephone Consumer Protection Act and a Washington state law when it continued to call him with prerecorded messages despite his claim that he never agreed to receive such calls, and his repeated requests to be added to the company's do not call list. Chesbro sought to certify a class of consumers with the same complaints, but Best Buy successfully moved for summary judgment. The Ninth U.S. Circuit Court of Appeals reversed that decision, finding the calls were unsolicited advertisements within the meaning of the TCPA.

Chesbro bought a computer from Best Buy in 2008, using a payment plan. In the paperwork for this, he provided his phone number. He and Best Buy dispute whether he also signed up for Best Buy's "reward zone" program and thus agreed to receive their phone calls. Following this, Chesbro began receiving automated calls from Best Buy about his "reward zone" membership, numbering more than five and less than a dozen in his estimation. After the first one, he used Best Buy's automated system to opt out of further calls, then complained to the Washington attorney general's office and also called the store to ask to be put on Best Buy's do not call list. Store employees didn't know what Chesbro was talking about, but the state's complaint got Chesbro on the list. Seven months later, he received another call and filed this lawsuit. Best Buy moved for judgment on the pleadings, and the district court converted it to a summary judgment motion and granted it.

The Ninth U.S. Circuit Court of Appeals reversed, finding that the calls were advertisements and not purely informational. The TCPA forbids prerecorded calls to residential phones unless they were agreed to ahead of time or are otherwise exempt. The FCC may exempt calls that do not contain any unsolicited advertisement, and the FCC has determined that unsolicited advertisements with customer service components are still banned. Best Buy contended that its calls were informational "courtesy" calls to "reward zone members," and didn't reference any goods or services and therefore were not advertisements. The Ninth disagreed. "Reward zone" points are redeemable only at Best Buy, it noted, and thus the calls could only be interpreted as a suggestion to shop at Best Buy. The record shows that Chesbro repeatedly asked not to be called, the court said, so the calls were unsolicited advertisements. Thus, it reversed summary judgment and remanded.

Vincent Howard and our Orange consumer protection attorneys are pleased that our home federal appeals court made this decision. It wasn't clear why the district court granted summary judgment, but we agree that the calls were pretty clearly advertisements. And because Chesbro disputes that he signed up for the "reward zone" program, there's a genuine issue of material fact to be decided that should preclude summary judgment. Federal law forbids repeated calls like this to people who didn't sign up for them, and interestingly, the court noted that the FCC forbids callers from ignoring requests to add consumers to the do not call list. This is a powerful tool in the kind of anti-telemarketing, consumer protection lawsuit that Vincent Howard and our Moreno Valley consumer protection attorneys file on behalf of consumers.

If you've been harassed by a telemarketer or a debt collector with repeated robo-calls to a cell phone, you shuld talk to Howard Law, P.C., about your rights and your legal options. To learn more, send us a message through our website or call us toll-free at 1-800-872-5925.

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