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W.Va. high court says Pep Boys didn't violate federal law

By Jessica M. Karmasek | Oct 4, 2011


CHARLESTON, W.Va. (Legal Newsline) - The West Virginia Supreme Court of Appeals last week upheld a circuit court's ruling in favor of a popular tire and auto parts chain.

Plaintiff Diana Mey filed a class action complaint against defendants The Pep Boys, Southwest Vehicle Management Inc. and Lanelogic Inc.

She alleged they violated the federal Telephone Consumer Protection Act by leaving an automated voicemail message at her home in response to a classified ad her son placed on

Mey's son was selling a used car and his Internet ad invited third parties to contact him at the plaintiff's home telephone number.

The Ohio County Circuit Court ruled that the automated call placed in response to the ad did not violate the TCPA and granted the defendants' motion to dismiss.

Following the ruling, Mey filed a motion for relief, which the circuit court also denied.

In her appeal to the state's high court, Mey argued the circuit court erred by:

- Failing to apply the correct standard of review when assessing the motion to dismiss;

- Ruling that the automated call was not a "telephone solicitation" and did not contain an "unsolicited advertisement" as those terms are defined by the TCPA;

- Failing to grant the plaintiff's motion for relief after being informed that the Federal Communication Commission issued a citation against the defendants; and

- Finding that the plaintiff provided her "prior express consent" to be contacted.

The Court, in its 24-page ruling Thursday, affirmed the lower court's orders. Justice Menis Ketchum authored the opinion.

The Court noted that the circuit court's order granting the motion to dismiss states that it accepted all of Mey's allegations as true: Mey's son advertised a used car for sale on the Internet and received an automated call from the defendants inquiring about buying the car.

"There is no factual dispute regarding the text of the automated call," Ketchum wrote. "The plaintiff also alleged that this automated call was made without her prior express consent and that no one in the plaintiff's household had a prior business relationship with any of the defendants. The circuit court accepted these allegations as true and determined that they failed to state a claim as a matter of law under the TCPA."

Because the circuit court accepted the factual allegations contained in the complaint as true, Ketchum said the Court found no error with the standard of review the court applied to the motion to dismiss.

The high court turned to the circuit court's ruling that the automated call at issue did not contain an "unsolicited advertisement."

According to the Court, unsolicited advertisement is defined as "any material advertising the commercial availability or quality of any property, goods or services which is transmitted to any person without that person's prior or express invitation or permission, in writing or otherwise."

The classified ad, the Court explained, did not contain any limiting instructions on how a third party was to contact the plaintiff's son.

"By posting the advertisement and telephone number on the Internet, the plaintiff's son expressly invited third parties, including the defendants, to make inquiries about the car," Ketchum wrote. "We therefore agree with the circuit court's conclusion that the automated call was not an unsolicited advertisement, rather, it was a call made in direct response to an advertisement by the plaintiff's son inviting third parties to respond."

Mey also took issue with the circuit court's finding that the automated call was not a "telephone solicitation."

According to the Court, telephone solicitation is defined as "the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or the investment in, property, goods or services, which is transmitted to any person, but such term does not include a call or message: to any person with that person's prior express invitation or permission; to any person with whom the caller has an established business relationship; or by or on behalf of a tax-exempt nonprofit organization."

"According to these regulations, the defendants' call in response to the classified advertisement was not a telephone solicitation as long as the purpose of the call was to inquire about the used car the plaintiff's son advertised," Ketchum wrote.

However, Mey argued that the purpose of the call was not only to inquire about the car, but also to entice her to participate in a marketing scheme designed to generate fees from automobile inspections and repairs. She said no offer was made during the call, and she or her son would have had to follow a series of steps, including getting the car inspected at Pep Boys, before an offer would have been made.

Again, the high court agreed with the circuit court's analysis.

"In the present case, the automated call requested more information about the car so that an offer could be made," Ketchum wrote.

"The FCC regulations do not require a party responding to a classified advertisement to make an offer during the initial call. It would be unusual for a party responding to a classified advertisement for real estate or a used car to make an offer without first conducting an inspection."

The Court also shot down Mey's argument that the automated message violates the TCPA because she did not expressly consent to receive it.

It noted that Mey's son put their phone number on the Internet and invited third parties to contact him.

"The legislative history of the TCPA states that 'persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary,'" Ketchum wrote.

Mey also argued the circuit court erred by failing to grant her motion for relief after being informed that the FCC issued a citation against Pep Boys.

But it was Mey who filed the consumer complaint with the FCC -- 12 days after the circuit court granted the defendants' motion to dismiss. The citation was based on her own complaint.

"The problem with the plaintiff's argument is that the citation is a form document that does not detail what, if any, investigation the FCC undertook prior to issuing it. This form document was issued before the defendants had an opportunity to respond to it," Ketchum wrote.

The Court noted, in contrast, the circuit court ruled on the motion to dismiss after considering the briefs and oral arguments of both parties, analyzing these arguments under the TCPA, and issued a detailed order explaining its reasons for granting the motion to dismiss.

"Because we have the briefs the parties filed before the circuit court, the transcript of the oral argument and the circuit court's order before us, we can meaningfully review the circuit court's conclusions. It is difficult to perform a similar review of a form document that cites 'alleged' violations," Ketchum wrote.

Mey still argued the citation entitles her to relief because it is new evidence that has come to light since the dismissal order.

Not so, the Court said.

"The plaintiff offers no explanation why the FCC citation could not have been filed and presented to the circuit court prior to entry of judgment. The plaintiff's failure to file her consumer complaint with the FCC prior to the judgment does not make the citation 'new evidence,'" Ketchum wrote.

Justice Brent Benjamin did not participate in the decision.

From Legal Newsline: Reach Jessica Karmasek by email at

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