Consumer Rights: Anti-Robocall Statute Applies to Pre-Recorded Employment Recruiting Calls

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There is a federal law called the Telephone Consumer Protection Act (“TCPA”) that protects consumers from being harassed and annoyed by unwanted automatically dialed phone calls, cell phone calls, text messages and pre-recorded messages. Companies that violate the prohibitions set forth in the TCPA can be sued in court and can be severely punished. Statutory damages can be awarded to a successful litigant for as much as $500 per violation and, for willful or knowing violations, the damages can be as high as $1,500 per violation. Thus, for example, if you have received 10 unwanted and unconsented “robocalls,” you might potentially be awarded $5,000 to $15,000 in money damages. You can also be awarded reasonable attorneys’ fees and court costs. If you think you have been the victim of these types of abusive calls and messages, you should consult with experienced debtor and consumer rights attorneys like those at Guardian Litigation Group.

The federal Ninth Circuit Court of Appeals has recently expanded the protections afforded by the TCPA in a case called Loyhayem v. Fraser Financial & Ins. Services, Inc., Case No. 20-56014 (US 9th Cir. August 10, 2021). Prior to Loyhayem, it was generally presumed that the TCPA only regulated telemarketing, advertising and informational calls and messages. However, the Ninth Circuit ruled that the TCPA also applies to calls and messages related to job recruitment. Indeed, the court concluded that the TCPA applies to ANY type of call or message, without regard to content. This significantly expands the legal protections for consumers (and for job applicants) against harassing and unwanted robocalls.

In brief, the facts of the case are these: The plaintiff in the case, Jonathan Loyhayem, received a call to his cell phone that “went to voicemail.” When retrieved, the voicemail was a pre-recorded message that Loyhayem characterized as a “job recruitment call.” Loyhayem said in his lawsuit that the call was made using an automated telephone dialing system and that the message was an artificial or pre-recorded message. According to Loyhayem, he never consented to receiving calls or messages of this type from the caller or anyone else. Loyhayem claimed that the call and the voicemail message violated several provisions of the TCPA.

At the trial level, Loyhayem’s case was dismissed. The lower court ruled that the TCPA did not apply to job-recruitment robocalls.

The case was appealed and the Ninth Circuit overturned the decision made by the lower court. As noted, the Ninth Circuit held that the prohibitions found in the TCPA were applicable to any type of robocall including ones made for job-recruitment purposes. The court stated:

“As for the [TCPA] itself, it does not prohibit making robocalls to cell phones only if the calls involve advertising or telemarketing. The applicable statutory provision prohibits in plain terms “any call,” regardless of content, that is made to a cell phone using an automatic telephone dialing system or an artificial or pre-recorded voice, unless the call is made either for emergency purposes or with the prior express consent of the person being called.”

Since Loyhayem claimed that the call was made via an automatic dialing system and that he had not consented to receive such calls, the Ninth Circuit held that the lower court had erred in dismissing the case. The case was returned to the lower court for further proceedings.

Contact an Experienced Consumer Rights Attorney

For more information, contact the Consumer and Debtor Rights attorneys at Guardian Litigation Group. We have the tools and legal experience necessary to protect you and to recover money damages for you if you have been the victim of robocalling and/or robotexting. Our Mission is to provide unparalleled legal services and support to consumers and financially distressed individuals. We can be reached via our contact page or by phone at (949) 444-5474.