In Tomeo v. CitiGroup, Inc., 2018 WL 4627386, at *9–12 (N.D.Ill., 2018), Judge Ellis declined to certify a wrong-number TCPA class. Here, Citi has put forth specific evidence establishing that a significant percentage of the putative class consented to receiving calls. Hansen intentionally avoided stating an opinion on the issue of consent in the Hansen Report, Doc. 121 Ex. 6… Read More
In Glasser v. Hilton Grand Vacations Company, LLC., 2018 WL 4565751, at *5–7 (M.D.Fla., 2018), Judge Whittemore granted summary judgment to a TCPA defendant on the basis that no ATDS was used. According to Sponsler, “human intervention in this case is the human intervention step to dial.” (Id. at 101:9-10, 102:11-12). He identified three components which demonstrate that Defendant’s system is… Read More
In Ramos v. Hopele of Fort Lauderdale, LLC, 2018 WL 4568428, at *1–2 (S.D.Fla., 2018), Judge Moreno adopted the Magistrate's recommendation and granted summary judgment to a TCPA defendant who sent text messages to an uploaded list of numbers. Defendant's Motion for Summary Judgment is GRANTED. The defining issue in the Report and Recommendation and Plaintiff's principal objection to the… Read More
Has Judge Sammartino in the U.S.D.C. for the Southern District of California seen “Who Framed Roger Rabbit”. In Barvie/Herman v. Bank of America, 2018 WL 4537723 (S.D.Cal., 2018), “Baby Herman” had some unauthorized charges debited from Baby Herman’s account, which didn’t go over none-too-well. Plaintiffs gave birth to a child (“Baby Herman”) and subsequently opened up a savings account with Defendant in… Read More
In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More
In Lucas v. Total Security Vision, Inc., 2018 WL 4519896 (S.D.Ohio), 4 (S.D.Ohio, 2018), Judge Bowman agreed that “excessive fines” was not an appropriate affirmative defense in a TCPA case. Plaintiff seeks to strike Defendants’ constitutional arguments that TCPA damages are an excessive fine under the Eighth Amendment. (Doc. 32, ¶32). This Court previously agreed in another case filed by Plaintiff. See… Read More
The Court of Appeals for the Ninth Circuit issued its opinion in Marks v. Crunch San Diego on September 20, 2018. Marks v. Crunch San Diego, LLC, 2018 WL 4495553 (9th Cir. 2018). The court held that equipment needs only “store” numbers and automatically dial them to qualify as an ATDS. The court held: “the statutory definition of ATDS includes a… Read More
In Chacker v. JPMorgan Chase Bank, N.A., 2018 WL 4474732, at *7 (Cal.App. 2 Dist., 2018), the Court of Appeal declined to award reverse attorneys' fees under the Rosenthal Act. Plaintiff's operative complaint alleged, in its third cause of action, that Chase engaged in unlawful debt collection practices in violation of the Rosenthal Act and an analogous federal statute. We… Read More
In Smith v. One Nevada Credit Union, 2018 WL 4407251, at *1 (D.Nev., 2018), Judge Navarro certified an FCRA settlement class. The facts were as follows: On July 18, 2017, Plaintiff filed his Amended Complaint (the “Complaint”) alleging violations of the FCRA, 15 U.S.C. § 1681 et seq. on behalf of a Putative Class comprising similarly situated persons, discussed infra.… Read More
In Taylor v. Alltran Financial, LP, 2018 WL 4403335, at *3–4 (S.D.Ind., 2018), the District Court certified an FDCPA class over the Defendant's objection that some of the debts might be commercial debts. Here, Defendants’ argument that the proposed class could contain individuals who received commercial or business loans, and who would therefore be ineligible under the FDCPA, makes no… Read More
In Blanchard v. Fluent, LLC., 2018 WL 4373099, at *2–3 (N.D.Cal., 2018), Judge Chesney remanded a case to state court, referring to TCPA precedent. Where, as here, a plaintiff brings a claim under a statute prohibiting the making of false or misleading commercial speech, courts have found the plaintiff, to have standing, must allege an injury caused by such speech.… Read More
In Sharp v. Ally Financial, Inc., 2018 WL 4300018, at *18 (W.D.N.Y., 2018), Judge Wolford found that a TCPA claim survived the Plaintiff's death. Accordingly, the Court declines to follow the rationale and the conclusion set forth in Hannabury to the extent discussed above, and holds that a private claim brought pursuant to § 227(b)(3) and § 227(c)(5) of the… Read More
In Consumer Financial Protection Bureau v. Source for Public Data, L.P., 2018 WL 4258966, at *3 (C.A.5 (Tex.), 2018), the Court of Appeals for the Fifth Circuit rejected the CFPB's petition to enforce a CID against an alleged consumer reporting agency, where the only the wrongdoing the CFPB listed was "FCRA violation" and “any other federal consumer financial law.”. Such… Read More
In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 4217065, at *5–6 (M.D.Fla., 2018), Judge Moody described the effect of ACA Int'l on what constitutes an ATDS. In sum, ACA Int’l vacated the FCC’s 2015 Order in two ways relevant here: it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as… Read More
In Tourgeman v. Nelson & Kennard, here, the Court of Appeals for the Ninth Circuit held that the Plaintiff bore the burden of proving the defendant's net worth under the FDCPA's penalty provision. Here, Tourgeman had every opportunity to acquire evidence of Nelson & Kennard's net worth. A protective order was entered to give Tourgeman access to Defendant's financial information,… Read More
In Diaz-Lebel v. TD Bank USA, N.A., 2018 WL 4145912, at *3 (D.Minn., 2018), Magistrate Judge Thorson found that a request for wrong number data was disproportionate to the litigation, but agreed to throw the Plaintiffs a bone. The sheer burden and proportionality concerns prevent this Court from ordering that all documents responsive to this request be produced. Plaintiff’s alternative proposals… Read More
In Rodriguez v. Premier Bankcard, LLC, Case No. 3:16CV2541, 2018 WL 4184742 (N.D. Ohio. August 31, 2018), Judge Carr framed 3 questions on summary judgment. First, Premier claims that because Hodge is the subscriber to the 70 number–that is, the consumer assigned to the number, and the individual billed for the call–he “was entitled to grant prior express consent for… Read More
In Pittman v. Experience Information Soluntions, Inc., 2018 WL 4016604 (5th Cir. 2018), the Court of Appeals held that inaccuracy is an element of a claim against a furnisher under the FCRA, but the Plaintiff might have pleaded enough. There is no issue that Pittman notified the CRAs of his dispute, or that Experian and Equifax notified the Servicers of the… Read More
In Heard v. Nationstar Mortgage, LLC, 2018 WL 4028116 (N.D. Ala. August 23, 2018), Judge Haikala found that a mortgage company’s dialer was an ATDS under the TCPA. Nationstar argues that its system is not an automatic dialer because it does not “store” caller information. That information, Nationstar argues, is located on a separate “host system.” (Doc. 51, p. 6). But… Read More
In de la Torre v. CashCall, LLC., 2018 WL 3827233, at *1 (Cal., 2018), the California Supreme Court found that "nothing in California law prohibits a court from making an inquiry into the nature of a consumer loan agreement of at least $2,500 and the interest rate provided therein." "As such, just because loans of at least $2,500 are not… Read More
