In Panzarella v. Navient Sols., Inc., No. 20-2371, 2022 U.S. App. LEXIS 16324, at *11-12 (3d Cir. June 14, 2022), the Court of Appeals for the 3rd Circuit held that Navient's dialer was an ATDS, but it's ATDS-capacity was not "used" to call . As to the ATDS question, the Court of Appeals held: Applying this construction here, we find… Read More
In Viking River Cruises, Inc. v. Moriana, the U.S. Supreme Court held that the FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee. However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014)… Read More
In Mina v. Red Robin Int'l, Inc., Civil Action No. 20-cv-00612-RM-NYW, 2022 U.S. Dist. LEXIS 104423, at *10-16 (D. Colo. June 10, 2022), Judge Wang dismissed a TCPA case at the pleadings stage for absence of an ATDS under Duguid. [Defendant] maintains that Duguid does not foreclose a conclusion that the text messaging program used by Defendants constitutes an autodialer under… Read More
In Moskowitz v. Am. Sav. Bank, F.S.B., No. 20-15024, 2022 U.S. App. LEXIS 16016, at *8 (9th Cir. June 10, 2022) Moskowitz argues the district court erred in granting summary judgment for ASB because ASB did not have the consent required under the TCPA to send the responsive text messages to Moskowitz. We have already determined that the type of… Read More
In Barnett v. First Nat'l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 104029, at *5-8 (W.D. Ky. June 10, 2022), Judge Boom denied a motion to reconsider a finding that the TCPA defendant's LiveVox system was not an ATDS. In his Motion, Barnett claims that the Court failed to consider FNBO's use of the TWX system in… Read More
In Jackin v. Enhanced Recovery Co., LLC, No. 2:21-cv-00234-SMJ, 2022 U.S. Dist. LEXIS 104273, at *5-6 (E.D. Wash. June 10, 2022), Judge Mendoza adopted the Hunstein analysis in determining whether debt collectors can share consumer debt-related information with commercial mail vendors. Upon review of the record, the Court finds that Plaintiff has adequately alleged a violation of 15 U.S.C. § 1692c(b)… Read More
In United States v. Thompson, No. CR19-159-RSL, 2022 U.S. Dist. LEXIS 101558, at *3-7 (W.D. Wash. June 7, 2022), Judge Lasnik denied the Government's Motion in Limine to exclude evidence regarding cyber-security vulnerabilities at the corporate victim or other victim entities that are unrelated to the specific vulnerability that defendant allegedly exploited in the case at hand The government moves… Read More
In Williamson v. Irving K Motor Co. LLC, Civil Action No. 3:21-CV-1599-L-BH, 2022 U.S. Dist. LEXIS 101052, at *15-18 (N.D. Tex. June 7, 2022), Judge Ramirez denied a motion to dismiss a TCPA claim brought on the argument that SCOTUS' AAPC rendered the TCPA unenforceable from 2015 to 2020. A small number of district courts, including the Eastern Districts of Texas… Read More
In Thompson v. Exeter Fin. Corp., No. 2021AP219, 2022 Wisc. App. LEXIS 494, at *1-3 (Ct. App. June 8, 2022), the Court of Appeal affirmed summary judgment against a consumer who alleged breach of the peace during the course of an attempted repossession. On June 4, 2017, repossession agents attempted to repossess Thompson's car. Thompson's family members protested and told… Read More
In Demesa v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK, 2022 U.S. Dist. LEXIS 98511, at *8-9 (D. Nev. June 1, 2022), Judge Dorsey rejected a TCPA Plaintiff's attempted end-around Duguid, where the Plaintiff argued that a standard text message fell within section 47 U.S.C. § 227(b)(1)(B)'s prohibition against using "artificial or prerecorded voice" without consent. DeMesa's alternative theory of liability fares no better.… Read More
In Javier v. Assurance IQ, LLC, No. 21-16351, 2022 U.S. App. LEXIS 14951, at *3 (9th Cir. May 31, 2022), the Court of Appeals for the 9th Circuit held that "[t]hough written in terms of wiretapping, Section 631(a) applies to Internet communications." The facts and procedure below were as follows: Assurance is an insurance platform that owns and operates Nationalfamily.com. On this… Read More
On May 27, 20222, the California Privacy Protection Agency issued its first draft of Proposed Regulations under the California Privacy Rights Act. The rulemaking timeline is unclear but we expect additional information at the upcoming June 8, 2022 board meeting (agenda: https://cppa.ca.gov/meetings/agendas/20220608.pdf). The Proposed Regulations can be found here https://cppa.ca.gov/meetings/materials/20220608_item3.pdf High-level topics in the Proposed Regulations include: Restrictions on the Collection… Read More
In Melcher v. Titlemax of Tex., Inc., No. 3:21-cv-46, 2022 U.S. Dist. LEXIS 95414, at *11-13 (S.D. Tex. May 27, 2022), Judge Brown denied a motion to dismiss under the FDCPA filed by a repossession referral agency. MVTrac argues that despite the plaintiffs' allegations, it is neither a debt collector nor a skip-tracing company. Dkt. 29 at 7. Though there… Read More
The DFPI issued a Notice of Proposed Rulemaking, the comment period for which closes on July 5, 2022. The NPR relates to obligating covered persons to implement and maintain a process for consumers to make complaints and for covered persons to respond to them. The Notice is here (PRO-03-21-Notice-of-Proposed-Rulemaking-5-17-22 and the Proposed Regulations can be found here https://dfpi.ca.gov/wp-content/uploads/sites/337/2022/05/PRO-03-21-Draft-Text-CCFPL-Complaints-5-2-22.pdf In the Statement of… Read More
The California Supreme Court today ruled on whether the FTC Holder Rule caps the amount fees that a prevailing consumer can recover from the holder of a Retail Installment Sales Contract that contains the FTC's "Holder Rule" language in the RISC. A copy of the Supreme Court's decision in Pulliam v. TD Auto Finance can be found here. Read More
In Consumer Fin. Prot. Bureau v. CashCall, Inc., Nos. 18-55407, 18-55479, 2022 U.S. App. LEXIS 13810, at *23-25 (9th Cir. May 23, 2022), the Court of Appeals for the 9th Circuit rejected CashCall's argument that the Native American Tribal Lender, and not CashCall was the true lender for purposes of determining whether state usury law applied. In substance, all of… Read More
The DFPI announced that it continues to have delays in processing applications. Debt Collector Licensing – Update on Processing Delays In conjunction with the notice, the DFPI have also updated the Questions & Answers on their webpage at https://dfpi.ca.gov/debt-collection-licensee/. Read More
In Gross v. Citimortgage (9th Cir. 2022) -- FCRA decision, No. 20-17160, 2022 U.S. App. LEXIS 13096, at *8 (9th Cir. May 16, 2022), the Court of Appeals for the 9th Circuit held that under the FCRA, a furnisher of credit information must make a reasonable investigation if the consumer about whom it furnishes information to a credit reporting bureau… Read More
The Court of Appeals for the Ninth Circuit has long held that as part of their investigation obligations under the Fair Credit Reporting Act, consumer reporting agencies (“CRAs”) are not required to assess the merits of a legal defense to a payment obligation being reported on a consumer credit report. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 891… Read More
In Castorina v. Bank of Am., N.A., No. 2:21-cv-02004 WBS KJN, 2022 U.S. Dist. LEXIS 83039, at *13-14 (E.D. Cal. May 5, 2022), Judge Shubb dismissed a Rosenthal Act claim under Rule 9(b). The heightened pleading standard of Federal Rule of Civil Procedure 9(b) applies to claims under the Rosenthal Act when premised on allegations of fraud, and here plaintiff's… Read More
