In Berman v. Freedom Fin. Network, No. 18-cv-01060-YGR, 2019 U.S. Dist. LEXIS 150810, at *3 (N.D. Cal. Sep. 4, 2019), Judge Gonzalez-Rogers found no good faith defense to a TCPA claim. The alleged facts were as follows:
In the instant action, plaintiff Daniel Berman, on behalf of himself and a putative class, alleges violations of the Telephone Consumer Protection Act (“TCPA“), 47 U.S.C. section 227 et seq. by means of autodialed text messages and prerecorded voice calls as part of a telemarketing campaign by Lead Science, LLC (also known as “Drips”) and Fluent, Inc. (“Fluent”) promoting the services of Freedom Financial Network, LLC and Freedom Debt Relief, LLC (collectively “Freedom”). Berman alleges a total of four claims: one for violation of section 227(b)(1) for “robocalling,” i.e. placing non-emergency calls or text messages to a cell phone number using and automatic dialing system and/or an artificial or pre-recorded voice without his prior express written consent; a second for violation of section 227(c) for unsolicited telemarketing calls and texts to a residential telephone number listed on the National Do Not Call Registry (“NDNCR”); and two additional claims for willful violations of sections 227(b)(1) and 227(c).
Judge Gonzalez-Rogers declined to permit a good faith defense under the TCPA.
“The three elements of a TCPA [*30] claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); 47 U.S.C. § 227(b)(1). Defendants urge that there should be no liability where they reasonably relied in good faith on the consent provided to call a phone number and immediately stopped calling upon discovering that the person who provided consent could not be reached at that phone number. The Ninth Circuit has held, consistent with the statute, that a defendant may avoid liability by establishing that it had prior express consent. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009) (“the TCPA exempts those calls ‘made with the prior express consent of the called party,'” citing 47 U.S.C. § 227(b)(1)(A); see Van Patten, 847 F.3d at 1044 (“[e]xpress consent is not an element of a plaintiff’s prima facie case but is an affirmative defense for which the defendant bears the burden of proof.”). In Satterfield, the Ninth Circuit rejected the notion that a defendant could rely on consent given to a third party who supplied defendant with plaintiff’s contact information but was not an “affiliate” covered by the terms and conditions under which plaintiff gave that consent. Satterfield, 569 F.3d at 955 (reversing summary judgment because plaintiff’s consent to receive promotional material by Nextones could not be read as consenting to contact by defendant). However, the Ninth Circuit has not addressed whether defendants assert a “good faith” belief that the called party consented in order to avoid TCPA liability. The circuit courts that have considered whether intent is relevant to TCPA liability have all concluded that good faith error or mistake does not preclude a defendant’s liability but is material only to the question of treble damages for willful conduct. See Alea London Ltd. v. Am. Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011) (“The TCPA is essentially a strict liability statute . . . . [and] does not require any intent for liability except when awarding treble damages.”); Soppet v. Enhanced Recovery Co., LLC, 679 F.3d 637, 641 (7th Cir. 2012) (affirming TCPA liability for calls to phone numbers where the recipient of the call had not given consent, even if the phone number was called due to a typographical error in its entry or because the number previously belonged to a different person); Universal Underwriters Ins. Co. v. Lou Fusz Auto. Network, Inc., 401 F.3d 876, 882 n. 3 (8th Cir. 2005) (“The [TCPA] . . . makes no exception for senders who mistakenly believe that recipients’ permission or invitation existed. The issue of intent, or more accurately, the issues of knowledge and willfulness, however, clearly are material to the question of treble damages.”). Similarly, this Court and [*32] a number of district courts within the Ninth Circuit have concluded that the defendant’s good faith provides no defense to a TCPA claim. See, e.g., Perez v. Rash Curtis & Assoc., No. 16-cv-3396-YGR, 2019 WL 1491694 at *5 (N.D. Cal. April 4, 2019); Pieterson v. Wells Fargo Bank, N.A., No. 17-CV-02306-EDL, 2018 WL 3241069, at *3 (N.D. Cal. July 2, 2018) (“In the Ninth Circuit, district courts have generally rejected the “intended recipient” definition, which counsels against a conclusion that Defendant can rely on a good faith exemption to the consent requirement.”); Olney v. Job.com, Inc., No. 1:12-CV-01724-LJO, 2014 WL 1747674, at *9 (E.D. Cal. May 1, 2014) (“the [c]ourt declines to find TCPA provides a good faith exception,” distinguishing Chyba); Ahmed v. HSBC Bank USA, Nat’l Ass’n, No. EDCV152057FMOSPX, 2017 WL 5720548, at *3 (C.D. Cal. Nov. 6, 2017) (“there is no good faith defense against a TCPA claim. . . [a]ccordingly, the court will also strike the ‘bona fide error’ language from defendants’ seventeenth affirmative defense); cf. Springer v. Fair Isaac Corp., No. 14-CV-02238-TLN-AC, 2015 WL 7188234, at *3 (E.D. Cal. Nov. 16, 2015) (allowing defendant to raise prior express consent as an affirmative defense, but cautioning that [“[t]he [c]ourt’s ruling is not to be read as permitting a general good faith defense under the TCPA . . . [and defendant still] must produce sufficient facts showing [p]laintiff’s prior express consent to [*33] be contacted.”); see also Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 WL 1409425, at *7 (S.D.N.Y. Mar. 28, 2019) (same). The two contrary district court decisions within the Ninth Circuit on which defendants rely are factually distinguishable and fail to persuade. See Labau v. Cellco P’ship, No. 2:13-CV-00844-MCE, 2014 WL 2987767 (E.D. Cal. July 1, 2014) and Chyba v. First Fin. Asset Mgmt., Inc., No. 12-CV-1721-BEN WVG, 2014 WL 1744136 (S.D. Cal. Apr. 30, 2014) aff’d, 671 F. App’x 989 (9th Cir. 2016). In Labau, the district court denied plaintiff leave to amend to modify her class definition after having previously granted Verizon’s motion to deny class certification on the grounds that she was not a customer and therefore could not represent a class of Verizon customers. Labau, 2014 WL 2987767 at 4. In that action Verizon contended that it had prior express consent for debt collection calls it made to plaintiff because her brother-in-law had provided plaintiff’s phone number when he purchased five iPhones from Verizon, and therefore had called the number “in reasonable, good-faith pursuit of what they were owed” when the brother-in-law stopped paying. Id. at *2. The court denied plaintiff leave to amend stating that “no amendment can save Plaintiff’s complaint against Verizon from summary judgment, and therefore any amendment would necessarily be futile.” Id. at *3. The district court’s latter statement was, however, dicta given that the only issue before the court was amendment of the class action allegations. Moreover, the court’s decision on the pleading motion apparently turned on the fact of the familial relationship between plaintiff and the third-party who provided the phone number and consent, rather than on defendant’s good faith belief alone. Here, no evidence has been offered to suggest that Berman authorized or was related to anyone who provided his contact information to defendants. In Chyba, the court dismissed plaintiff’s TCPA claims arising from collection calls by defendant where it had relied on information from the creditor, Enterprise, indicating that plaintiff had provided her phone number to Enterprise, and thereby consented to be contacted. Chyba v. First Fin. Asset Mgmt., Inc., No. 12-CV-1721-BEN WVG, 2014 WL 1744136, at *10 (S.D. Cal. Apr. 30, 2014), aff’d, 671 F. App’x 989 (9th Cir. 2016) (“plaintiff provided her cellular telephone number to Enterprise, listing it as her home telephone number . . . [w]hen a consumer provides a cellular telephone number to a creditor as part of the underlying transaction, the provision of the number constitutes express consent for the creditor to contact the consumer about the debt”). No similar evidence of Berman’s consent has been offered here. This Court agrees with the weight of authority holding that TCPA claims do not require any proof of intent to establish liability, only to substantiate an award of treble damages based on a willful or knowing violation. Thus, defendants’ contention that it maintained a good faith belief that it had consent to call Berman is not dispositive on the TCPA claims.