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Federal Deception Law: 7.5.3.1.6 Pleading willfulness

The Federal Rules of Civil Procedure allow malice, intent, knowledge, and other conditions of a person’s mind to be alleged generally.609 However, pleading facts to support an allegation of willfulness—for example, that the defendant continued to make calls after requests to stop610—is always helpful. Pleading that the called party’s telephone number has always been a cell phone, that the caller’s website says its infrastructure a

Federal Deception Law: 7.5.3.2 Counterclaims and Third-Party Claims

Although some courts have disagreed,613 courts have generally declined to exercise supplemental jurisdiction over defendants’ counterclaims against TCPA plaintiffs to collect on an underlying debt to which a debt collection call related.614 One of the reasons that courts often cite is that exercising jurisdiction over these counterclaims would contradict federal policy concerns against automated telephone calls.615

Federal Deception Law: 7.5.4.1 Investigating Autodialer Issues

One way to investigate whether a defendant uses an automated telephone dialing equipment is to check the defendant’s website, as defendants will often boast of their use of the latest technology.625 The website may have a consent form that says that the consumer is consenting to receive autodialed calls.626 Or the website may post job openings that describe the equipment the job applicant will work with.627 Similarly, people seeking jobs may post r

Federal Deception Law: 7.5.4.5 Formal Discovery

Discovery should begin as soon as possible after filing a case because obtaining records regarding calls and consent will be crucial to the case and some businesses purge data on a regular schedule.

Consumer Arbitration Agreements: 5.5.3.1 Overview

Courts sometimes find that a party not mentioned in the arbitration agreement can still enforce the agreement based on the doctrine of equitable estoppel. This is the doctrine most commonly invoked by non-signatories to contracts seeking to benefit from arbitration clauses.

Consumer Arbitration Agreements: 5.5.3.2.1 Detrimental reliance of the movant

While the Supreme Court has held that the applicability of an arbitration agreement to a particular dispute is determined by “ordinary state-law principles that govern the formation of contracts,”280 many courts have failed to apply the state law of equitable estoppel to arbitration clauses in the same way that they would apply it in other circumstances.

Consumer Arbitration Agreements: 5.5.3.2.3 Relationship between signatory-plaintiff’s claims and the underlying contract

According to many courts, estoppel applies when “the signatory to a written agreement containing an arbitration clause must rely on the terms of the agreement in asserting claims against the non-signatory.”290 In some jurisdictions this type of equitable estoppel is called “direct benefits estoppel,” because it focuses on the ways in which the signatory and their claims benefit from the agreement.291 Courts have utilized a number of different, and sometimes conflicting, tests to determine whethe

Consumer Arbitration Agreements: 5.5.3.2.4 Relationship between non-signatory defendant’s misconduct and a signatory’s misconduct

Some courts hold that equitable estoppel may also apply “when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.”314 Similarly, estoppel will likely apply if the plaintiff’s claims against the non-signatory defendant are “inherently inseparable” from claims against a signatory that is a defendant in the same action.315

Consumer Arbitration Agreements: 5.5.3.3 Equitable Estoppel When a Signatory Seeks to Enforce the Arbitration Agreement Against a Non-Signatory

The doctrine of equitable estoppel also may apply to bind non-signatory consumers to an arbitration clause. Because courts understandably are more reluctant to bind a non-signatory to an arbitration agreement than to permit a non-signatory to enforce an arbitration agreement, more restrictive standards apply when a party seeks to use estoppel to force a non-signatory into arbitration.

Consumer Arbitration Agreements: 5.5.5.2 Implication for Agent When Signing Arbitration Agreement on Behalf of Principal

In contrast to a principal, an agent generally can neither enforce nor be bound by an arbitration agreement that it signed on behalf of a principal.366 An agent is normally not liable under a contract executed on behalf of the principal.367 Thus, in cases in which a consumer signs a contract with a company containing an arbitration clause, although the company has the right to enforce the contract’s arbitration clause, that right does not necessarily extend to th

Consumer Arbitration Agreements: 5.6.1 Assignees and Successors-in-Interest

An assignee of a contract generally has the same rights under the contract as the assignor, and courts have allowed assignees to take advantage of arbitration clauses in assigned contracts.394 Successors-in-interest may also be able to enforce an arbitration clause.395 A non-signatory who is an alter ego of a signatory to an arbitration clause also may be subject to the clause.396 Of course, debt buyers and other assignees and successors-in-interes

Consumer Arbitration Agreements: 5.6.3.1 Debt Buyer or Collector Must Produce the Arbitration Agreement

Because debt buyers and debt collectors deal with consumer accounts on a mass production basis, they rarely possess detailed documentation about a consumer account, including the arbitration agreement. Debt buyers and others wishing to take advantage of an arbitration agreement have the burden of showing that the consumer has agreed to an arbitration requirement. Thus a debt buyer or any other party wishing to force a consumer’s lawsuit into arbitration must produce evidence of an arbitration agreement and that the consumer has consented to that agreement.

Consumer Arbitration Agreements: 5.6.3.3.2 Agency as grounds to enforce the creditor’s arbitration agreement

Under state law an agent, based solely on their status as an agent, may not be able to enforce a contractual arbitration clause entered into by their principal, unless the dispute at issue arises under the contract in question. Claims concerning debt collection abuse do not arise under the original contract establishing the debt, so a debt collector’s status as an agent is insufficient to allow them to rely on their principal’s arbitration agreement.444