McMillion et al. v. Rash Curtis & Associates

Telephone Consumer Protection Act violations

Northern District

U.S. District Judge Yvonne Gonzalez Rogers

$267,349 million

Plaintiffs' lawyers: Bursor & Fisher PA, Scott A. Bursor, L. Timothy Fisher, Yeremey O. Krivoshey, Blair E. Reed

Defense lawyers: Ellis Law Group LLC, Andrew M. Steinheimer, Mark E. Ellis, Lawrence K. Iglesias, Anthony Paul J. Valenti

Consumers sued nationwide debt collection agency Rash Curtis & Associates under the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act and California state law alleging that the agency lacked the prior express consent necessary to subject them to robocalls, prerecorded voice messages and auto-dialed calls on their cell phones. McMillion v. Rash Curtis & Associates, 4:16-cv-03396 (N.D. Cal., filed June 17, 2016).

The plaintiffs, represented by Bursor & Fisher, contended that Rash Curtis made more than 534,000 such calls to members of the class. The defendant, represented by Ellis Law Group LLP, denied the claim. But a federal jury found for the plaintiffs, awarding each class member $500 per call for a total of $267,349 million.

L. Timothy Fisher

Analysts said the Federal Communications Commission has determined that debt collection calls are distinct from telemarketing calls. Auto dialers and pre-recorded debt collection calls may be used without consent to residential wired phones if they do not include telemarketing messages. But prior express consent must be in place before calling wireless numbers with an auto dialer. The evidence showed that Rash Curtis was calling skip traced numbers, found through investigation and search, leading the judge to find that no prior consent was in play.

Along with the big award, U.S. District Judge Yvonne Gonzalez Rogers of Oakland held that the service of a TCPA complaint seeking damages and injunctive relief operates as a revocation of consent to receive phone calls from the defendant.

The case is on appeal, according to Bursor & Fisher name partner Scott A. Bursor, who served as lead trial counsel for the class. He said the firm would have no further comment. In a statement on the firm's website, he was quoted as having said, "Our clients are quite happy with the jury's verdict, obviously. We were awarded 100 percent of the relief we sought." He noted that the outcome extended his firm's record of winning each of the six class action trials it has done. "For our law firm, this wasn't the largest verdict we've won, but it's close."

Lawyers at Ellis Law Group LLP who defended Rash Curtis did not return a message seeking comment.

-- John Roemer