WEST VIRGINIA RECORD

CHARLESTON – Telephone calls from robots invade privacy when calls from humans wouldn't, class action lawyers argue at the Supreme Court of Appeals.

John Barrett and Jonathan Marshall, of Bailey and Glasser in Charleston, seek to revive a suit Diana Mey filed against Caroffer.com and Pep Boys, in Ohio County.

"The call made by the defendants was not made by a live caller, but by a machine, and thereby implicates the strict yet sensible prescriptions of federal telephone privacy laws," Barrett and Marshall wrote.

Mey's son had posted her number with his car on Craigslist.

The Justices must decide whether Caroffer truly made an offer for his car or improperly engaged in solicitation and advertising.

They must also decide whether Pep Boys gained an improper benefit when Caroffer directed sellers to its shops for $99 inspections and possible repairs.

They plan to hear oral arguments Sept. 20.

Circuit Judge Martin Gaughan granted summary judgment to Caroffer and Pep Boys last year, shutting down a class action he had certified.

"The facts alleged in this case are the antithesis of the definition of 'unsolicited' because plaintiff's son requested unknown third parties interested in buying his car to contact him at plaintiff's number," he wrote.

He found the call "was initiated for the purpose of communicating defendants' interest in extending a bona fide offer or to engage in negotiations that might culminate in a bona fide offer for the car plaintiff's son advertised on craigslist.com."

He wrote that he couldn't subject the message to enforcement "because the person posting the classified is expressly inviting a call using the number in the classified ad."

The robot that started the suit left a message that Caroffer was willing to offer cash.

"Tell us about your vehicle and we'll give you an offer in minutes," the call said. "One of our real buyers will return an offer that we are willing to take for your vehicle."

It said the listener could drop the vehicle off at Pep Boys and pick up a check.

At the Supreme Court, Barrett and Marshall argue that the robot didn't ask for a specific person or refer to the make or model of the car.

"The call did not make any monetary offer for the car whatsoever," they wrote. "Although the call instructs Ms. Mey to take the car to a nearby Pep Boys dealer, it fails to note that there are no Pep Boys dealerships in West Virginia."

They wrote that Pep Boys and Caroffer split inspection fees and repair profits equally.

"To get a real offer, the consumer must pay to have the car inspected and pay for recommended repairs," they wrote.

For Pep Boys, Michael Mallow of Los Angeles answered that federal regulations can't be construed to require a binding, concrete offer in response to an advertisement.

He wrote that such a construction would contradict federal rules and fly in the face of common sense and everyday experience.

"Offers to purchase goods, whether homes or cars, are typically not made without inspection or discussion," he wrote.

Laura Wytsma and Aurele Danoff of Los Angeles worked on the brief. So did Keith George, Jeffrey Kimble and John Meadows, all of Robinson and McElwee in Clarksburg.