'Robo-call' law in limbo after lawsuit fails

This is a story about a man, a message, a federal lawsuit and some very unintended consequences.

James Cubbage is an Olympia businessman who came home one day last year to this prerecorded message on his answering machine: "Hi, it's Julie calling from Talbots with a reminder that you have only a few days left to take advantage of your exclusive 20 percent savings pass and free shipping ... "

Julie's chirpy advertisement — intended for Cubbage's wife, an occasional Talbots shopper — didn't send Cubbage rushing to the sales racks. It annoyed him. A lot. So much that he was on the phone to his lawyers within a couple of hours of taking the call.

Cubbage sued Talbots — a Massachusetts-based women's clothing retailer with more than $1 billion in annual sales — for allegedly violating the federal Telephone Consumer Protection Act and the Washington Automatic Dialing and Answering Devices Act (WADAD).

WADAD is supposed to bar the use of automated dialing and announcing devices for commercial solicitation and is considered among the most stringent phone-solicitation bans in the country.

Cubbage sought to have the lawsuit certified as a class-action, intending to bring in as co-plaintiffs thousands of others who had received the automated call.

But U.S. District Judge Benjamin Settle threw out Cubbage's claim in July, citing a lack of clarity in the state law and an exemption in the federal statute that allows such calls when there is an existing business relationship.

In doing so, Settle may have rendered WADAD unenforceable, according to state attorneys.

"It nullifies the statute," said Assistant Attorney General Shannon Smith, senior counsel in the office's Consumer Protection Division. "It's a very narrow interpretation of the statute, and it eviscerates the whole intent of the Legislature.

"This ruling gives a green light to use automated dialing with impunity," she said.

Her office is so concerned about it, she said, that lawyers are seeking permission from Attorney General Rob McKenna to file a friend-of-the-court brief supporting Cubbage's appeal to the 9th U.S. Circuit Court of Appeals.

Settle found that the statute, as written, bans only automated calls that make a sales pitch "in hopes of initiating a conversation" — in other words, a recorded message that then links you to a real person. Purely automated messages — such as the one left on Cubbage's home phone — are not banned, he ruled.

"Regardless of the intended purpose of the legislation, the Court may not add language to a clear statute, even if it believes the Legislature intended something but failed to express it adequately," Settle wrote in his July 7 order dismissing the case.

"It is an artlessly drafted statute," said Rob Williamson, Cubbage's Bainbridge Island attorney. "Still, we are perplexed by the judge's ruling."

Two messages left with David Bertoni, Talbots' attorney in Maine, were not returned. Talbots had filed a counterclaim against SmartReply, an Irvine, Calif.-based marketing firm, which had been hired to make the marketing calls.

Williamson specializes in litigation involving telemarketers and so-called "robo-calls," and said he's already seeing telemarketing companies using Settle's decision seeking to dismiss claims in other lawsuits.

In a brief filed in an unrelated telemarketing lawsuit, Williamson wrote that he has reviewed the legislative record from the passage of WADAD and concluded that lawmakers and staffers were aiming at a "flat ban" of all automated calls.

"No pun intended, but Judge Settles' decision is unsettling," Williamson said.

Cubbage, 57, is a biologist and co-founder of Cascadia Research, a nonprofit that focuses on marine-mammal studies. He also is co-founder and vice president of Working Systems, in Olympia, which specializes in software for labor unions. He declined to discuss the lawsuit because of the pending appeal.

Williamson said his client is passionate about his privacy.

In February, Cubbage filed another lawsuit in King County Superior Court against a telemarketer who called his cellphone. Williamson, who also represented Cubbage in that lawsuit, said it was dismissed because the defendant couldn't be located.

The facts of the Talbots lawsuit aren't in dispute: After coming home and hearing the message, Cubbage sued in June, alleging that the mere fact that he picked up the phone and heard the Talbots message — even though his wife had shopped there in the past — was enough to violate the telephone-solicitation statutes.

The federal Telephone Consumer Protection Act, however, has an exemption for calls made to people who have an "established business relationship" with the company.

In this case, Settle found that Cubbage's wife had such a relationship because she had shopped at a Talbots store previously. That relationship, the judge said, extended to Cubbage, and Settle also dismissed the federal claim.

Mike Carter: 206-464-3706 or mcarter@seattletimes.com