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Round and Round We Go: Eleventh Circuit Again Refuses to Compel TCPA Claim to Arbitration– Gives Short Shrift to Defendant’s Arguments

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The Eleventh Circuit Court of Appeal has handed down some rather remarkable TCPA rulings over the years.

First came Palm Beach Golf Center-Boca, Inc. v. Sarris, 771 F. 3d 1274 (11th Cir. 2014) in which the Eleventh Circuit found that anyone in the world has standing to sue anyone else for any TCPA violation because the TCPA is a “bounty hunter” statute. Then came the famous case of Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014) in which the Court held that consent is revocable and that the “called party” for consent purposes is the current subscriber to the phone line called. Next the world watched with wide-eyed wonder as the Eleventh Circuit blessed partial revocation requests in Schweitzer v. Comenity Bank, 866 F. 3d 1273 (11th Cir. 2017). And just a few weeks back the Court came very close to suggesting that TCPA claims are not subject to arbitration at all in Gamble v. New England Auto Finance, Inc., No. 17-15343 (11th Cir. 2018).

While measurably less impactful than any of those decisions, the Eleventh Circuit Court of Appeal yet added another pro-consumer TCPA decision to its collection last Thursday in Ray v. NPRTO Florida, LCC, No. 18-10188, 2018 WL 3598636 (11th Cir. 2018). There the Eleventh Circuit panel upheld a district court’s denial of arbitration in favor of a consumer who had not signed a contract containing the arbitration clause. Although the Defendant/Appellant contended that Plaintiff/Appellee was, nonetheless, bound to arbitrate the claim as a non-signatory owing to her receipt of the benefits of the contract containing the clause, the Eleventh Circuit was not impressed with these arguments finding, in essence, that Defendant had waived the argument by failing to address the district court’s reasoning head on.

A bit more background here. The district court had relied upon a Florida state law case of Mendez v. Hampton Court Nursing Ctr., LLC, 203 So. 3d 146, 148 (Fla. 2016) summarizing the law as such– “the third-party beneficiary doctrine does not permit two parties to bind a third—without the third party’s agreement—merely by conferring a benefit on the third party.”  The district court then found that “whether Plaintiff—as an alleged beneficiary of the Lease—is bound by the arbitration agreement depends on whether her claims are premised on the Lease.” Concluding that the TCPA claim are “not premised” on the contract–echoes of Gamble here–the district court holds that the non-signatory cannot be compelled to arbitrate her claims under Florida law even if she received the benefit of the contract.

On Appeal, the Eleventh Circuit found that Defendant had ignored Mendez and that failure was determined fatal to the appeal:

The district court based its decision in large part on Mendez v. Hampton Court Nursing Center, LLC, 203 So.3d 146 (Fla. 2016), yet in its briefs on appeal, Progressive Leasing fails to mention Mendez even once, much less explain why the district court’s reliance on it was misplaced… Progressive Leasing has therefore abandoned challenging the primary basis on which the district court ruled.

Eesh. Note to self– when appealing  to the Eleventh Circuit Court of Appeal, be sure to address the key case contained in the district court’s order denying arbitration. Or maybe just avoid TCPA appeals to the Eleventh Circuit altogether.

 

 

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