Kroger Robocall Class Action Lawsuit Will Stay in Arbitration

By Sarah Mirando | May 17, 2013

Category: Legal News

By Anne Bucher

Kroger class action lawsuit A federal judge last week refused to reconsider a November decision to send a proposed class action lawsuit accusing Kroger Co. of robocalling customers to arbitration.

Plaintiff Patrick McNamara of San Diego, California, sued Kroger and Citizens Financial Group, a subsidiary of the Royal Bank of Scotland Group PLC (RBS), in September 2011 after opening a credit card from Kroger Personal Finance.

He alleged in the proposed class action lawsuit that the companies utilize automatic dialing systems that keep track of a large number of consumer debts, a practice that is prohibited by the Telephone Consumer Protection Act (TCPA) and Federal Communications Commission (FCC). The FCC only allows companies to engage in robocalls with consumers who have given express consent for the company to do so. McNamara claims that he never provided the companies with his cell phone number.

In the initial class action lawsuit, McNamara sought an injunction to prohibit Kroger, Citizens and RBS from making robocalls to consumers who did not consent to the phone calls. He also sought financial damages for every call that violated the terms of the TCPA. The proposed class would have included U.S. residents who received automated calls to their cellphones from Citizens, RBS or Kroger after September 14, 2007 without their express consent.

Judge Refuses to Reconsider Decision to Send Lawsuit to Arbitration

After U.S. District Judge M. James Lorenz sent the TCPA dispute to arbitration in November 2012, McNamara filed a motion to have the judge reconsider sending the action to arbitration. McNamara cited case law that supported his assertion that the arbitration was illusory because the contract terms could be changed at any time.

On May 9, Judge Lorenz refused to reconsider his decision to send the Kroger robocall class action lawsuit to arbitration. Judge Lorenz refuted McNamara’s argument, stating that the case was not binding in this lawsuit because it was listed a footnote in another case. Even if the case had been binding case law, the plaintiff had failed to show that the law supported the argument that the arbitration agreement was unenforceable.

Robocalls Illegal Under Federal Law

New technology has made it cheaper and easier for companies to use autodialers that can make thousands of phone calls each minute. When consumers answer the phone, they often hear a prerecorded sales message. These prerecorded messages, frequently called “robocalls,” are illegal under the Telephone Consumer Protection Act (TCPA).

The TCPA is a federal law that protects consumers from unsolicited telephone communications. Passed in 1991, the law places restrictions on the use of automated dialing systems to place telemarketing phone calls. It limits the types of contact that companies can make with consumers via telephone and fax without receiving express consent with the consumer.

A company found in violation of the TCPA may be liable for penalties that range from $500 to $1,000 per violation. Because automatic dialing technology allows companies to contact thousands of phone calls each minute, these penalties can quickly become significant.

If You Have Been the Victim of Robocalling

If you have received unsolicited phone calls or texts, you may be eligible to receive compensation. To learn more about your rights, visit the Text Message Spam, Cell Phone Call TCPA Class Action Lawsuit Settlement Investigation. A class action lawyer will conduct a free case review and determine whether you qualify to join a TCPA lawsuit. You may be eligible to receive hundreds of dollars in compensation.