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Recently, the United States Court of Appeals for the Eleventh Circuit made a significant ruling regarding the Telephone Consumer Practices Act ("TCPA"), which prohibits the use of automatic telephone dialing or a prerecorded voice to call a person's cell phone without prior consent. The Eleventh Circuit, in Breslow v. Wells Fargo Bank, held that the term "called party" is not limited to the intended recipient of the caller. Breslow v. Wells Fargo Bank, No. 12-14564 (11th Cir. 2014). The basic fact pattern in Breslow is as follows: Well Fargo was allegedly making phone calls to who it believed was a prior bank customer regarding an outstanding debt. However, the recipient of the calls, unbeknownst to Wells Fargo, was not the debtor to whom Wells Fargo was attempting to contact. In fact, the recipient was a minor. The actual debtor had previously been assigned the number being called and had authorized Wells Fargo to call that number, but, at the time the calls took place, the debtor no longer had that cell phone number. Wells Fargo argued that the term "called party" should be limited to the caller's intended recipient and to hold otherwise would be unjust because Wells Fargo had no knowledge that the phone number was now assigned to someone else. The Eleventh Circuit disagreed and rejected the argument.

Thus, as was the scenario is Breslow, a person who makes a phone call without prior consent and with the use of an automatic telephone dialing system or prerecorded voice may be found in violation of the TCPA even if the person who answers the call was not the intended recipient and notwithstanding the caller's knowledge or lack thereof.

This ruling is significant because you may have fallen victim to this exact scenario. If you are being called by someone or some entity and you have not previously provided your express consent for them to call, you may have a case under the TCPA, which provides for statutory damages up to $1,500 per violation.

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