Collector - July 2020 - 42

IAF

The Saga of "Bad Reyes" and the TCPA
A story of how ACA's Industry Advancement Fund helped members succeed against all odds.
By Colin Winkler

E

strellita Reyes v. BCA Financial
Services, Inc.-or, as many in the
industry have come to know it,
"Bad Reyes." Although it was "only" a
district court case, it carried significance
in the Telephone Consumer Protection
Act community because it stuck with the
Federal Communications Commission's
view that a predictive dialer constitutes
an automatic telephone dialing system
(ATDS) under the TCPA even after the
D.C. Circuit, in ACA International v. FCC,
apparently invalidated the FCC's position
on that point in 2018.
"Bad Reyes" had been kicking around in
the Southern District of Florida for some
three and a half years when, out of the blue,
the court entered an order in mid-March
granting the parties' joint motion to vacate
the court's prior ruling on Reyes's motion
for summary judgment, decertify the class,
and dismiss the case with prejudice as to
Reyes and without prejudice as to the other
class members.

42

This resolution to Bad Reyes should,
frankly, be celebrated given the direction
the case appeared to be headed. But how
did "Bad Reyes" get to be bad? And how did
it get hung up in the district court for well
over three years? Perhaps most importantly,
why did the plaintiff suddenly capitulate in
March 2020?
The answers to these questions recount
the saga of "Bad Reyes," a tale of how-in
the face of a relentless onslaught from
an opportunistic consumer bar and a
historically illogical overregulation-ACA's
Industry Advancement Fund stood up
and helped members succeed, in this case
against all odds.

START AT THE BEGINNING
In September 2016, Estrellita Reyes fi led
a complaint in the Southern District
of Florida alleging that BCA Financial
Services, an ACA member company, had
violated the TCPA by using a predictive
dialer to call her cell phone on six
occasions without her prior consent and,
during the sixth and fi nal call, by using an

interactive voice response (IVR). During
the sixth and fi nal call-the only one that
Reyes answered-Reyes interacted with
the IVR to report that BCA had reached a
wrong number. Upon being informed that
it had reached a wrong number, BCA did
not call Reyes again.
In fact, BCA had been trying to reach a
different individual, its medical provider
client's patient, who had provided BCA's
client with consent to call but, on the form
submitted to the provider, had transposed
some digits in his or her own phone number,
which caused BCA to contact Reyes instead.
Until Reyes interacted with the IVR during
that sixth and final call, neither BCA nor its
provider client actually knew or reasonably
could have known that BCA had been
calling a wrong number in their good-faith
effort to reach the provider client's patient.

ACAINTERNATIONAL.ORG


http://www.ACAINTERNATIONAL.ORG

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