Breslow v. Wells Fargo Bank: Published Panel Opinion Addressing Supposed Issue of First Impression Under the TCPA Vacated Because the Issue--the Meaning of the Term 'Called Party'--Had Already Been Decided by a Prior Panel

Breslow v. Wells Fargo Bank, No. 12-14564, from SDFla

Per curiam opinion joined by Circuit Judge Tjoflat, Circuit Judge Wilson, and District Judge Proctor (ND Al)

Summary: The panel vacated the original 19-page opinion issued on June 5, 2014, which was authored by Circuit Judge Tjoflat, and substituted a new five-page opinion in its place.  The plaintiff alleged that Wells Fargo made multiple calls using an autodial system to her cell phone number.  The Telephone Consumer Protection Act of 1991 (TCPA) makes it unlawful to make a call using an autodial system to a cellular telephone without the prior express consent of the called party.  Wells Fargo did not have the plaintiff's consent to use an autodial system. 

Wells Fargo argued that a former customer had provided the cell phone number on an account application and that because this former customer was the called party and had consented to such a call, the TCPA did not apply.  The district court concluded that the plaintiff, rather than the former customer, was the called party.  Wells Fargo then filed an interlocutory appeal, which was granted to determine the proper meaning of the term called party. 

In the revised panel opinion, the panel noted that in Osorio v. State Farm Bank, 746 F.3d 1242 (11th Cir. 2014), which was not mentioned in the first opinion, a previous panel had concluded that a called party means the subscriber to the cell phone service.  Since the former customer was not the subscriber to the cell phone service, Wells Fargo’s argument was rejected. 

The district court’s grant of partial summary judgment to the plaintiff was accordingly affirmed.

Note: The original opinion had a much fuller discussion of the issue and concluded that “called party” meant the subscriber to the cell phone service or user of the cell phone called.  The panel concluded that the plain meaning of the term was ambiguous and consulted the legislative history to reach this result.  The opinion also considered a previous Seventh Circuit opinion on the same issue as persuasive. 

 

The Osorio opinion (decided by a panel of Senior Circuit Judge Anderson, Senior Circuit Judge Gilman (6th Cir., author), and District Judge Johnson (NDAl), also found the Seventh Circuit’s opinion persuasive and determined that the called party did not mean intended recipient. 

 

In my view, Judge Tjoflat’s original vacated opinion was a more complete and concise discussion of the called party issue, but it is now consigned to the dustbin of vacated opinions because neither the parties nor the court noticed the Osorio decision!