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Michael Chesbro v. Best Buy Stores

October 17, 2012

MICHAEL CHESBRO,
PLAINTIFF-APPELLANT,
v.
BEST BUY STORES, L.P.,
DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding D.C. No.2:10-cv-00774-RAJ

The opinion of the court was delivered by: Noonan, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted August 8, 2012-Seattle, Washington

Before: John T. Noonan, Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Noonan

OPINION

Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated telephone calls placed to his home by Best Buy violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227, and the Washington Automatic Dialing and Announcing Device Act ("WADAD"), Wash. Rev. Code § 80.36.400. The district court granted summary judgment in Best Buy's favor. We reverse and remand for further proceedings.

Factual and Procedural History

Plaintiff Michael Chesbro purchased a computer from Best Buy in 2008. At the time of the purchase, he signed up for a no-interest payment plan to finance the cost of the computer. He filled out paperwork and provided his contact information, including his telephone number. The parties dispute whether, at the time of purchase and when opting for the credit plan, Chesbro enrolled in Best Buy's Reward Zone Program ("RZP"). Best Buy claims that it obtained his signature; Chesbro maintains that, if so, he did not know that he was being enrolled in the RZP or know what the RZP was.

The RZP allows customers to earn points toward certificates - coupons with a $5 value for every $250 spent - that can be applied toward future purchases at Best Buy. See Bl. 13. Best Buy contends that, as an RZP member, Chesbro consented to the terms of the RZP Privacy Policy, which authorizes Best Buy to contact program members with program-related communications. Best Buy states that, though RZP members may opt out of receiving marketing communications regarding the program, Best Buy may still contact members with program-related communications, such as membership information.

Chesbro received many automated "robot" calls from Best Buy following his July 2008 computer purchase. He estimates that he received "more than five, less than a dozen" calls from Best Buy during this period; he could identify the caller from the caller identification feature on his phone. During the period at issue, Chesbro maintains that he was registered on the national "Do Not Call" ("DNC") list.

On November 12, 2008, Chesbro complained to the Washington Attorney General's Office ("AGO") regarding a call that he received on November 11. Best Buy concedes that it made this November 11 automated call but argues that the call was a courtesy message alerting Chesbro to the looming expiration of his RZP certificates. The undisputed script of the call is as follows:

Hello, this is Andrea from Best Buy Reward Zone calling for (Recipient's first and last name) to remind you that your Reward Certificates are about to expire. (Certificate amount) dollars in Reward Certificates were mailed to you on (Mail date) and they will expire if not used by (Expiration Date). If you do not have your reward certificates, you can re-print them online at myrewardzone.com. Thank you for shopping at Best Buy.

Chesbro maintains that, before filing his AGO complaint, he communicated his desire to opt out by following the prompts on the automated touch-tone dialing system. Chesbro also called the Best Buy store and asked to be put on Best Buy's internal DNC list. The customer service representatives with whom he spoke stated that they did not know what phone calls he was talking about. Chesbro specifically asked for all marketing ...


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