Gaker v. Citizens Disability, LLC

Gaker v. Citizens Disability, LLC

Opinion

MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

A. KELLEY, D.J.

This is a consumer protection action brought pursuant to the Telephone Consumer Protection Act ("TCPA"). The plaintiff, Heather Gaker ("Ms. Gaker") alleges that defendant Citizens Disability, LLC ("Citizens") violated the TCPA by placing telemarking calls to her cell phone without her prior consent despite her being on the Do Not Call Registry. Citizens argues that Ms. Gaker consented to receive such calls. The parties have cross-moved for summary judgment.

I. BACKGROUND

In evaluating the cross motions for summary judgment, the Court relies upon Ms. Gaker's response [Dkt. 77] to Citizens' statement of undisputed material facts [Dkt. 66, "Def. SMF"], and Citizens' response [Dkt. 74] to Ms. Gaker's statement of undisputed [*2]  material facts [Dkt. 70, "Pl. SMF"]. All facts admitted by both parties are deemed true, and all facts contested by one party are deemed to be in dispute pending trial.

a. Uncontested Facts

Ms. Gaker is a Boynton Beach, Florida resident with a recognized disability who has received Supplemental Security Income benefits since 2015. [Pl. SMF ¶¶ 1-2]. On or around November 15, 2019, Ms. Gaker registered her cell phone number on the Do Not Call Registry. [Id. ¶ 4].

Citizens is a Massachusetts for-profit corporation which assists persons with disabilities in claiming benefits from the Social Security Administration, deriving its revenue from contingency fees from awarded benefits. [Id. ¶ 6; Def. SMF ¶ 1]. Citizens relies on telemarketing to reach potential clients. [Pl. SMF ¶ 7]. Approximately 40 to 50 percent of Citizens' "leads" are generated through Digital Media Solutions, a marketing vendor. [Id. ¶ 7; Def. SMF ¶ 3]. A "lead" typically includes an individual's name, telephone number, mailing address, and email address. [Def. SMF ¶ 4]. After receiving a "lead," Citizens confirms that the individual's IP address is within the United States before placing a telemarketing call, but does not [*3]  use two-factor authentication to confirm the lead. [Pl. SMF ¶¶ 25-27]. The corporate designee of Citizens gave deposition testimony that people "looking for free money online" are people Citizens wants to "talk with," as there is a chance these people have a disability. [Pl. SMF ¶ 24]. Citizens does not subscribe to the Do Not Call Registry, [Def. SMF ¶ 6], and does not check the Do Not Call Registry before calling a "lead" if it has what it considers to be express written consent from that "lead," [Pl. SMF ¶ 29].

On January 3, 2020, Citizens received Ms. Gaker's personal information through a website operated by Digital Media Solutions. [Pl. SMF ¶ 7; Def. SMF ¶ 10]. A "Trusted Form" report documented the entry of Ms. Gaker's personal information from an IP address located in Hollywood, Florida. [Pl. SMF ¶¶ 11-12]. This report, which contains a visual playback link recreating the entry of Ms. Gaker's information, shows that the information was entered on the Super-Sweepstakes.com website that was in effect as of January 2020. [Pl. SMF ¶¶ 12-14]. Ms. Gaker does not have a specific recollection of visiting this website or entering her personal information on it.¹ [Pl. SMF ¶ 15; Def. SMF [*4]  ¶¶ 17-18].

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