In Ku v. Trans, No. 2:18-CV-1714 JCM (BNW), 2020 U.S. Dist. LEXIS 27474 (D. Nev. Feb. 18, 2020), Judge Mahan ruled against an FCRA Plaintiff alleging inaccurate reporting of a bankrupt account. Unsurprisingly, information in a consumer report is inaccurate if it is patently incorrect. Carvalho, 629 F.3d at 890. Even if information is "technically accurate," however, it may be… Read More
In Faircloth v. AR Res., Inc., No. 19-cv-05830-JCS, 2020 U.S. Dist. LEXIS 28335 (N.D. Cal. Feb. 19, 2020), Judge Spero found that the discovery rule did not apply to either the FDCPA or Rosenthal Act. 1. The Discovery Rule Does Not Apply to the FDCPA. Defendant claims that the FAC should be dismissed because claims brought under the FDCPA and… Read More
In Allen v. Credit Collection Servs., No. 2:18-cv-00929-MCE-KJN, 2020 U.S. Dist. LEXIS 27363 (E.D. Cal. Feb. 18, 2020), Judge Englund dismissed an FDCPA claim on the basis that the call number and pattern did not constitute harassment under the FDCPA. Plaintiff maintains that, despite CCS' call logs and telephone recordings of the two actual conversations its representatives had with Plaintiff… Read More
In Gadelhak v. AT&T, here, the Court of Appeals for the Seventh Circuit disagreed with the Ninth Circuit’s decision in Marks, finding that an ATDS requires that a system store or produce numbers using a random or sequential number generator. We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that “using a random… Read More
In Lynaugh v. Vincent, No. CV-19-04643-PHX-DJH, 2020 U.S. Dist. LEXIS 23246 (D. Ariz. Feb. 10, 2020), Judge Humetewa found that attorneys’ fees awarded in an underlying consumer litigation was not a debt incurred on a consensual basis and, accordingly, did not arise from a “transaction” under the FDCPA. The Court will first examine Defendants' contention that the attorneys' fees judgment… Read More
In Marshall v. Robins Fin. Credit Union, No. 5:19-CV-260 (MTT), 2020 U.S. Dist. LEXIS 22274 (M.D. Ga. Feb. 10, 2020), Judge Treadwell found against an FCRA Plaintiff in a ‘scheduled monthly payment’ claim. Robins argues that it did not furnish an inaccurate tradeline because the monthly payment amount of $524.00 is an accurate "historical term" for an account that it… Read More
In Ewing v. Pollard, No. 19-CV-855-CAB-BGS, 2020 U.S. Dist. LEXIS 22659 (S.D. Cal. Feb. 10, 2020), Judge Bencivengo dismissed a TCPA case due to calls being manually dialed. This section of the TCPA prohibits "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing… Read More
In Beal v. Outfield Brew House, No. 2:18-cv-4028-MDH, 2020 U.S. Dist. LEXIS 22487 (W.D. Mo. Feb. 10, 2020), Judge Harpol granted summary judgment to a TCPA defendant, rejecting the 9th Cir.’s decision in Marks. Plaintiff urges the Court to follow the Ninth Circuit's opinion, which found the statutory definition of an ATDS ambiguous and interpreted an ATDS to include devices… Read More
In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is. Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made… Read More
In Warciak v. Subway Rests., Inc., No. 19-1577, 2020 U.S. App. LEXIS 3487 (7th Cir. Feb. 5, 2020), the Court of Appeals for the Seventh Circuit said that Subway was not responsible under the TCPA for contractually participating in T-Mobile’s text message campaign advertising “T-Mobile Tuesdays”. After reviewing the record, we agree with the district court that Warciak's complaint failed… Read More
In Robertson v. AllianceOne Receivables Mgmt., No. 1:19-cv-00749-DAD-SKO, 2020 U.S. Dist. LEXIS 15768 (E.D. Cal. Jan. 29, 2020), Judge Drozd dismissed an FDCPA overshadowing claim. AllianceOne contends the validation statement in its notice is not overshadowed or contradicted by other messages appearing in the notice. AllianceOne also argues that the least sophisticated debtor would not construe the notice to have demanded… Read More
In Poghosyan v. First Fin. Asset Mgmt., No. 1:19-cv-01205-DAD-SAB, 2020 U.S. Dist. LEXIS 14137 (E.D. Cal. Jan. 27, 2020), Judge Drozd found that a plaintiff might be able to state a claim for improper debt collection under the CLRA. Although the California Supreme Court has not yet addressed whether the CLRA applies to certain types of financial transactions such as… Read More
In Glasser v. Hilton Grand Vacations Company, LLC, (No. 18-14499), the Court of Appeals for the Eleventh Circuit held that the Court of Appeals for the Ninth Circuit got it wrong in Marks. After they each received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, Melanie Glasser and Tabitha Evans sued the… Read More
In Preston v. Midland Credit Mgmt., No. 18-3119, 2020 U.S. App. LEXIS 1775 (7th Cir. Jan. 21, 2020), the Court of Appeals for the Seventh Circuit rejected a ‘benign language’ exception to section 1692f(8), finding that an envelope’s label “TIME SENSITIVE DOCUMENT” potentially violated the FDCPA. Following his receipt of the letter, Mr. Preston filed this action in which he… Read More
In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800, at *11-12 (D. Mass. Jan. 8, 2020), Judge Gorton granted summary judgment on a TCPA "re-assigned" number case, permitting a "reasonable reliance" defense. The First Circuit Court of Appeals has not addressed this issue and the district courts in this Circuit and other circuits that… Read More
Alastair Mactaggart penned the attached letter (here) on where he thinks the CCPA falls short, and what he proposes the Senate ought to do to fix it. Read More
In Flecha v. Medicredit, Inc., No. 18-50551, 2020 U.S. App. LEXIS 481 (5th Cir. Jan. 8, 2020, the Court of Appeals for the Fifth Circuit reversed class certification in an FDCPA case. This class fails for similar reasons. Every member of the putative class received the same allegedly threatening letter from Medicredit. But the FDCPA penalizes empty threats, not all… Read More
The CCPA went live on January 1, 2020, creating a cause of action and potential liability of between $100 to $750 per person for a data breach deriving from a business' failure to maintain reasonable policies and procedures. Unfortunately, the CCPA does not define the term "reasonable". While compliance lawyers and consultants properly have been advising their clients to shore… Read More
The California Legislature enacted SB 708, effective January 1, 2020, as a further attack on arbitration in California. SB 708 states, in part, that: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, that the drafting party pay certain fees and costs during the… Read More
The FTC issued a press release summarizing, and providing links to, the various data breach settlements that it has reached with businesses in the last two years. The FTC summarized its efforts to improve its data security orders and, in doing so, suggested the types of measures the FTC looks for in determining whether a business has implemented reasonable data… Read More
