Scott D. Owens
Scott D. Owens (CANDACE WEST / COPYRIGHT 2014)

Did the Eleventh Circuit make a mistake?

Apparently it did.

On June 5, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued a signed, 19-page ruling affirming a lower court in Breslow v. Wells Fargo Bank, a Telephone Consumer Protection Act case.

Case Name: Lynn Breslow v. Wells Fargo Bank
Case No.: 12-14564
Dates: June 5 and June 9, 2014
Case type: Telephone Consumer Protection Act
Court: U.S. Court of Appeals for the Eleventh Circuit

Authors of opinions: Judge Gerald Bard Tjoflat and per curiam

Lawyer for petitioner: Scott D. Owens, Scott D. Owens P.A., Hallandale Beach

Lawyers for respondent: Amy S. Rubin and Elliot A. Hallak, Fox Rothschild, West Palm Beach; Jan T. Chilton and Eric J. Troutman, Severson & Werson, San Francisco, and Scott James Hyman, Severson & Werson, Irvine, Calif.

Panel: Circuit Judges Tjoflat and Charles R. Wilson and U.S. District Judge R. David Proctor, Northern District of Alabama

Originating court: Southern District of Florida

On June 9, the same panel issued an unsigned, five-page ruling affirming the lower court but for a different reason. On its own motion, the court vacated the 4-day-old Breslow opinion and substituted the new ruling in its place.

Most unusual is how the panel treated Osorio v. State Farm Bank, a March 28 decision by a different Eleventh Circuit panel. In the second Breslow ruling, Osorio is dispositive; in the first, it’s not mentioned. And the author of the first decision, Judge Gerald Tjoflat, had to know about Osorio because he adjudicated a dispute over whether his panel should take it into account.

The dueling opinions could signal a struggle within the panel, but that’s generally resolved behind closed curtains or aired in a dissent or concurrence. In both Breslow decisions, the three judges speak as one.

The court may have erred by releasing the first ruling prematurely. Or someone belatedly realized that since a party’s lawyer brought up Osorio, the judges should take a look at it.

Of course, no one with inside knowledge is talking.

“We’re still comparing the two opinions [Osorio and Breslow] to see if there should be any sort of en banc review,” said Breslow’s attorney, Scott Owens, winner of this round in the ongoing litigation.

How Many Robocalls?

Lynn Breslow bought a cell phone for her adolescent son “R.B.” Unfortunately, a former customer of Wells Fargo Bank used the same number on a credit application and at some point stopped making payments.

How many debt-collection autodialed calls went to the cell is disputed. Wells Fargo admits to two; Breslow contends the number is more like 1,400.

“It was annoying enough for a 14-year-old to ask the parent to return the phone,” said Owens, a consumer rights attorney with his own firm in Hallandale Beach.

The exact number is important because the Telephone Consumer Protection Act sets damages at $500 per illegal call. A judge who determines the violations are willful can triple the total.

The case went up as an interlocutory appeal of an order by U.S. District Judge Robert N. Scola Jr. granting summary judgment to Breslow on the matter of Wells Fargo’s liability. The appellate court was asked to define “called party” in this part of the act: It’s unlawful to autodial a cell phone without the prior consent of the “called party.”

In the Breslow case, was that party the mother and account holder, the son and primary user or as Wells Fargo argued the former customer who signed on to the autodialed calls?

The case was argued before the Eleventh Circuit panel on July 17, 2013. It was still undecided eight months later when the Osorio ruling came down.

Osorio Rules

Owens, who found Osorio helpful to his cause, offered it to the court as supplemental authority.

“It was binding. Was it completely binding? That was for the court to decide,” he said.

In response to Owens’ proffer, a lawyer for Wells Fargo sent a letter to the Eleventh Circuit clerk saying Osorio was distinguishable and didn’t help resolve the called-party issue. The lawyer went on to give reasons why Scola’s summary judgment “must be reversed.”

That didn’t sit well with Owens, who moved to strike the “unauthorized and improper” letter. His motion characterized Wells Fargo’s statements as “misleading” and “merely an attempt to impermissibly place new arguments before this court.”

Wells Fargo denied Owens’ allegations.

On May 2, Tjoflat granted Owens’ motion to strike the Wells Fargo letter. Presumably, having cleared away an obstacle to considering Osorio, the panel would see for itself if the ruling was relevant to Breslow.

The opinion signed by Tjoflat was released June 5. The first four pages recite the facts and conclude that “called party” in the TCPA means the subscriber to the cell phone service, here Breslow. Assuming no further appeal, she can return to the trial court for a determination of damages.

The remaining 15 pages apply a traditional approach to interpreting the statute, looking first to its plain meaning, then to its legislative history. Full of bows to Congress and strict construction, the ruling cites a precedent that said, “Legislation means today what it meant when enacted.”

Four days later came a different path to the same outcome in an unsigned opinion. Osorio said “called party” means subscriber to the cell phone service. Period, full stop, nothing else to say.

This time the Breslow panel shows deference only to the Osorio panel—Circuit Judge R. Lanier Anderson and two visitors, Sixth Circuit Judge Ronald Lee Gilman and Judge Inge Prytz Johnson of the Northern District of Alabama.

It quoted from a 1993 Eleventh Circuit en banc ruling: “It is the firmly established rule of this circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc or by the Supreme Court.”

Breslow still wins the preliminary bout that is really the main event. Barring a contrary ruling of the full court, it’s all over but the damages.