January 16, 2015

tcpaOn January 8, 2015, a class action lawsuit was filed in the United States District Court for the Southern District of California, alleging that Sirius XM Holdings, Inc. (“Sirius”) had placed numerous unsolicited telemarketing calls to the plaintiff’s cellular telephone using an automatic telephone dialing system in violation of the Telephone Consumer Protection Act (“TCPA”).  Additionally, the lawsuit seeks to hold Toyota Motor Sales USA Inc. (“Toyota”) vicariously liable for Sirius’s TCPA violations.  The lawsuit seeks $1500 in statutory damages per call per class member, as well as treble damages.  Neither Sirius, nor Toyota, have responded to requests for comment.

Alleged Violations of the TCPA by Sirius

According to the complaint, in September 2014, the plaintiff purchased an automobile “from Toyota’s San Antonio dealership.”  The named plaintiff alleges that he was unaware that his new automobile included a free-trial for Sirius satellite radio.  Thereafter, between September and December of that year, Sirius placed more than 30 telemarketing calls to the plaintiff’s cellular telephone, attempting to sell him a Sirius satellite radio subscription.  The plaintiff alleges that all of these telemarketing calls were made in violation of the TCPA.

Alleged Violations of the TCPA by Toyota

According to the complaint, the plaintiff answered at least one telemarketing call from Sirius.  During that call, the plaintiff asked how Sirius had obtained his telephone number.  The telemarketer informed the plaintiff that Sirius obtained his number “from his recent car purchase from a Toyota dealership and that his call was for the purpose of inquiring whether Plaintiff would like to purchase ongoing Sirius radio service.”  In October of 2014, the plaintiff received confirmation from the Toyota dealership where he had purchased his automobile that the Toyota corporate office in California had in fact provided his telephone number to Sirius.  However, according to the complaint, “Toyota did not make any disclosure concerning its sale or exchange of customer information to third-parties such as Sirius.”  The plaintiff alleges that neither Toyota, nor Sirius, ever obtained his prior express written consent to receive such calls as is required under the TCPA.

Protect Yourself

We recently blogged about AT&T’s $45 million settlement of a lawsuit involving telemarketing calls allegedly placed to cellular telephones in violation of the TCPA.  The TCPA is a strict liability statute, and class action lawsuits concerning violations of the law have increased over the past few years.  It is important that marketers and service providers alike understand the parameters of both federal and state telemarketing laws to avoid becoming the subject of class-action litigation.

If you are interested in this topic or if you have been served with legal process relating to your telemarketing practices, please e-mail us at info@kleinmoynihan.com or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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You may be interested in similar blog posts related to this topic:

How to Defend and Win a TCPA Lawsuit

All Parties in the Marketing Chain May Be Held Liable for TCPA Violations

Connecticut’s New TCPA-Like Telemarketing Law Mandates Enhanced Damages and is Now in Effect

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