Koh Jae v. ABC Financial Services, Inc.

Filing 37

Judge F. Dennis Saylor, IV: ORDER entered. MEMORANDUM AND ORDER on Defendant's Motion for Summary Judgment. Defendants motion for summary judgment is GRANTED in part and DENIED in part. Specifically, it is granted as to the claim that plaintiff revoked consent during the March 25, 2016 call, and is otherwise denied.(Pezzarossi, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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YOUNG KOH JAE,
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Plaintiff,
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v.
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ABC FINANCIAL SERVICES, INC.
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Defendant.
)
__________________________________________)

Civil Action No.
16-11534-FDS

MEMORANDUM AND ORDER ON DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This case arises out of attempts to collect a debt. Plaintiff Young Koh Jae contends that
defendant ABC Financial Services, Inc. made multiple calls to his cellular telephone to collect
fees allegedly owed to a third party health club. He contends that those calls were made without
his consent, using an automated telephone-dialing system, in violation of the Telephone
Consumer Protection Act, 47 U.S.C. § 227. He seeks injunctive relief, actual damages, statutory
damages of $500 per violative telephone call, and treble statutory damages.
ABC has moved for summary judgment. For the following reasons, the motion will be
granted in part and denied in part.
I.

Background
A.

Factual Background

Unless otherwise noted, the following facts are undisputed.

1.

ABC Acquires Koh’s Cellular Telephone Number

On July 5, 2014, Young Koh Jae joined a health club called Retro Fitness located in East
Norriton, Pennsylvania. (Koh Dep. 23). When Koh joined the health club, he signed a
membership agreement, on which he wrote his cellular telephone number. (Membership
Agreement, Def. Ex. B at 1).
At all relevant times, ABC Financial Services, Inc. (“ABC”) was the payment processing
company for Retro Fitness. (St. Onge Aff. ¶ 2). It provided billing and account services
concerning Koh’s account. (Id.). The information provided on Koh’s membership agreement,
including his telephone number, was downloaded into the systems of ABC when he joined the
health club. (Id. ¶ 3).
2.

ABC Calls Koh

ABC makes calls to Retro Fitness members when there is a problem with billing or an
account needs to be updated. (Id. ¶ 4). ABC contends that all of its calls to health club members
are made from the number 800-897-6877 (“x6877”). (Id.). ABC made multiple calls to Koh
during the period from January 6, 2016, through June 14, 2016, from the x6877 number
concerning his Retro Fitness account. (ABC Call Notes, Def. Ex. E; Koh Cellular Telephone
Call Records, Def. Ex. F). Koh agrees that ABC made calls during that period from the x6877
number and also contends that ABC made calls from a different telephone number, although he
cannot remember what that number was. (Koh Dep. 43).
The parties agree that most of the calls from ABC to Koh went to voicemail or otherwise
did not result in a live conversation. Koh alleges (and ABC has not contested) that at least some
of those calls were made using an automated telephone dialing system. (Compl. ¶ 22; Def. Mot.
for Summ. J. Mem. at 2). The number of occasions on which Koh answered an ABC call and

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spoke with a representative is in dispute. Koh contends he spoke to representatives on two
occasions, first in February 2016, and again in March 2016. (Id. at 37, 46). ABC contends that
Koh spoke with a representative only once, on March 25, 2016. (St. Onge Aff. ¶¶ 9–11).
a.

The Disputed February Call

Koh contends that ABC called him sometime in February 2016 from a number other than
x6877, but cannot recall what the number was. (Koh Dep. 37). 1 He contends that during the
call, he spoke to an ABC representative and revoked consent for further calls, telling the
representative to stop making “multiple automated calls.” (Id. at 40, 43; Def. Ex. C ¶ 9). When
asked at his deposition what his “best guess” was as to the length of that call, he responded that it
lasted “[s]ometime around three minutes.” (Koh Dep. 39).
ABC contends that the alleged February call never occurred. (St. Onge Aff. ¶ 10). It
contends that all calls made to health club members are noted in the member’s account notes and
all live calls are recorded. (Id. ¶ 5). Both ABC’s account notes and Koh’s cellular telephone
records reflect that five calls were made to Koh from the x6877 number in February. (Id. ¶ 9;
Def. Ex. E at 4–5; Def. Ex. F at 10). ABC’s account notes indicate that none of those calls
resulted in a live communication between Koh and an ABC representative. (St. Onge Aff. ¶ 9).
Instead, all calls either resulted in a dialing error or went straight to voicemail. (Id. ¶ 10).

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In response to interrogatories, Koh stated that the call occurred at some time “in or around” February
2016. (Def. Ex. C). However, his sworn deposition testimony clearly and unequivocally states that the call occurred
in February 2016. It states,
Q. When did the telephone conversation that you allege or the telephone call ABC made to you in
February of 2016 from some number other than 800-897-6877 take place?
A. I don’t recall. Sometime in February.
Q. You specifically recall it being in February?
A. Yes.
(Koh Dep. 38).

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The parties agree that Koh’s cellular telephone records indicate that he received only two
incoming calls in February 2016 lasting between one minute and thirty seconds and five minutes
and thirty seconds in duration. (Def. Ex. F at 10). 2 Those two calls came from two different
numbers, neither of which is the x6877 number. (Id.). Koh’s telephone records show that he
also made outbound calls to both of those numbers. (Id. 4, 9, 11). It is undisputed Koh never
placed any outbound calls to ABC. (Koh Dep. 42).
b.

The March Call

On March 25, 2016, ABC initiated a call to Koh from the x6877 number. Koh answered.
(Koh Dep. 46–47; St. Onge Aff. ¶ 12). During the call, Koh spoke with an ABC representative
for about three and a half minutes. (Def. Ex. E. at 7). ABC has provided a transcript of the call
recording. (Def. Ex. H).
When Koh answered the March 25 call, an ABC representative greeted him and stated
that she was calling “in regards to [his] Retro Fitness membership.” (Id.). Koh responded “OK,
ahh, I thought I cancelled that a long time ago.” (Id.). She told him that the call was an attempt
to collect a debt, and further explained that his account with Retro Fitness was still active. (Id.).
The representative recommended that he “give [Retro Fitness] a call” to cancel the membership.
(Id.). When Koh asked “can’t you guys do that?” she responded, “we’re the billing company so
we just collect on the monthly dues but if you’re cancelling you would have to go through the
club.” (Id.). When pressed, she stated that he could send an e-mail to ABC customer care in
order to cancel the account. (Id.). 3

2

The five inbound calls from the x6877 number on February 2, 8, 13, 15, and 17, lasted for 89, 87, 88, 27,
and 89 seconds, respectively. (Def. Ex. F).
3
Following that call, Koh sent a number of e-mails to ABC concerning the cancellation of his Retro Fitness
account. (Def. Ex. I–K).

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During the course of the conversation, Koh did not refer to the alleged earlier call in
which he revoked consent to receive calls. (Id.). He also did not use the explicit language that
he purportedly used during the February call to demand that ABC stop calling. Instead, Koh
contends that the statement “I thought I cancelled that a long time ago” conveyed to ABC that he
did not want to receive further calls. (Koh Dep. 60).
ABC continued to call Koh until June 14, 2016. (Def. Ex. E; Def. Ex. F at 10–11). None
of the calls between March 25, and June 14, resulted in live communication between Koh and an
ABC representative. (Pl. SMF ¶¶ 31–33).
B.

Procedural Background

Koh filed this action on July 25, 2016, alleging violations of the Telephone Consumer
Protection Act (“TCPA”), 47 U.S.C. § 227. On April 21, 2017, ABC moved for summary
judgment.
II.

Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)).
Summary judgment is appropriate when the moving party shows that “there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A genuine issue is “one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant, would permit a rational fact finder to
resolve the issue in favor of either party.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896
F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court
indulges all reasonable inferences in favor of the nonmoving party. See O'Connor v. Steeves,

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994 F.2d 905, 907 (1st Cir. 1993). When “a properly supported motion for summary judgment is
made, the adverse party must set forth specific facts showing that there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quotations omitted). The nonmoving party may not simply “rest upon mere allegation or denials of his pleading,” but instead
must “present affirmative evidence.” Id. at 256–57.
III.

Analysis
“Congress passed the TCPA to protect individual consumers from receiving intrusive and

unwanted calls.” Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 268 (3d Cir. 2013). Generally
speaking, the Act regulates the use of certain technology for the purpose of making calls to
consumers. See Baisden v. Credit Adjustments, Inc., 813 F.3d 338, 341–42 (6th Cir. 2016).
Among other things, it prohibits the use of an automatic telephone-dialing system to make calls
to recipients in the United States or by persons in the United States, except for calls “made for
emergency purposes or made with prior express consent of the called party.” 47 U.S.C. §
227(b)(1)(A). The Federal Communications Commission (“FCC”), which has authority to
implement the TCPA through regulation, has interpreted the Act “to allow consumers to revoke
consent if they decide they no longer wish to receive voice calls.” In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C. Rcd. 7961, 7993–94 ¶
56 (July 10, 2015); see also 47 U.S.C. § 227(b)(2).
The parties appear to agree that defendant used an automatic telephone-dialing system to
make multiple calls to plaintiff from January 6 through June 14, 2016. They agree that plaintiff
consented to receive those calls when he signed up for a health club membership with Retro
Fitness. They dispute, however, whether plaintiff ever revoked that consent. Plaintiff contends

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that he revoked consent to be called on two occasions: first in February 2016, and again in
March 2016. 4
A.

February Call

Plaintiff contends that he was called by defendant at some unknown time in February
2016, from some unknown number other than the x6877 number, and that during that call he told
the representative to stop making “multiple automated calls.” In support of that contention, he
points only to his own sworn deposition testimony and interrogatory responses.
Defendant contends that the overwhelming evidence in the record indicates that the
February conversation never occurred. Defendant points to its own call notes that indicate that
none of the five calls it made from the x6877 number to plaintiff in February 2016 resulted in
live communication. It contends that it records all live calls between a representative and health
club members and that no such recording exists for any calls placed to defendant in February
2016. It further contends that its position is supported by plaintiff’s own cellular telephone
records. In coming to that conclusion, it starts with plaintiff’s statement that the February call
lasted “around three minutes.” Plaintiff’s cellular telephone records indicate that none of the
calls plaintiff received in February that were between one and a half minutes to five and a half
minutes in duration could have been placed by defendant, because plaintiff also placed outgoing
calls to those numbers.
Despite the disparity in the evidence, there is a material issue in dispute concerning
whether the February 2016 conversation occurred. Under Fed. R. Civ. P. 56(c)(1)(A), a party
resisting summary judgment may support its contention that an issue is in dispute by citing to

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Neither party has argued that plaintiff’s consent was not revocable under the circumstances. Cf. Reyes v.
Lincoln Auto. Fin. Servs., 2017 WL 2675363, at *5 (2d Cir. June 22, 2017) (finding that where provision of
telephone number was required by an express term of a contract, revocation of consent to be called for purposes of
debt collection would unilaterally alter a term of the contract).

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deposition testimony and interrogatory answers, among other things. Although a factfinder
could obviously find that defendant’s contemporaneous business records provide a more reliable
source of evidence than plaintiff’s own self-serving testimony, it is not for the Court to resolve
issues of credibility on a motion for summary judgment. See Perez-Trujillo v. Volvo Car Corp.
(Sweden), 137 F.3d 50, 54 (1st Cir. 1998). In addition, defendant’s analysis of plaintiff’s
telephone records is not dispositive. Plaintiff did not state affirmatively and unequivocally that
the call lasted three minutes. Instead, he stated that his “best guess” was that the call lasted
“[s]ometime around three minutes.” Viewed in the light most favorable to plaintiff, there is
evidence in the record from which a reasonable juror could find that plaintiff revoked his consent
to be called during a February call. Accordingly, the motion for summary judgment will be
denied as to that claim.
B.

March Call

Plaintiff contends that he again revoked consent to be called during the March 25, 2016
call. There is no dispute as to the content of that call. The parties dispute whether plaintiff’s
statement that he “thought [he] cancelled [his Retro Fitness account] a long time ago” constituted
a revocation of consent to be called by ABC.
In July 2015, the FCC issued a declaratory Ruling and Order that provides guidance
concerning when and how an individual may revoke prior express consent to be called. See In
the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 F.C.C.
Rcd. 7961 (July 10, 2015). The guidance provides that a consumer “may revoke his or her
consent in any reasonable manner that clearly expresses his or her desire not to receive further
calls.” Id. at 7998–99 ¶ 70. That standard is an objective one, requiring that the revocation must

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be “clearly made” and “express a desire not to be called or texted.” Van Patten v. Vertical
Fitness Grp., LLC, 847 F.3d 1037, 1048 (9th Cir. 2017).
Plaintiff did not clearly communicate a desire that defendant’s calls cease during the
March 25, 2016 call. At most, his statement that he “thought [he] cancelled that a long time ago”
put defendant on notice that he disputed whether he owed the debt being collected. It could not
reasonably be understood as a clear revocation of consent to be contacted in the future
concerning that debt. Among other things, stopping the calls would have no effect as to whether
the debt was owed. Even if plaintiff had actually canceled his membership, that action would not
have constituted a revocation of consent to be called concerning unpaid debt. See Van Patten,
847 F.3d at 1048 (finding that cancellation of health club membership does not constitute
revocation of consent to be contacted by health club for advertising purposes). Because plaintiff
did not clearly express a desire not to be called, nothing in the March 25 call could reasonably
have been understood to constitute a revocation of consent. Accordingly, summary judgment
will be granted as to that claim.
IV.

Conclusion
For the foregoing reasons, defendant’s motion for summary judgment is GRANTED in

part and DENIED in part. Specifically, it is granted as to the claim that plaintiff revoked consent
during the March 25, 2016 call, and is otherwise denied.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
United States District Judge

Dated: July 5, 2017

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