In Lord v. Kisling, Nestico & Redick, LLC, 2018 WL 3391941, at *3 (N.D.Ohio, 2018), Judge Nugent found that a TCPA Plaintiff did not plead sufficient facts demonstrating that an ATDS was used under the standard set forth by the D.C. Circuit's decision in ACA International. For the telephone system KNR allegedly uses to constitute a violation of the TCPA,… Read More
Severson published an Alert regarding California's new privacy legislation, entitled "California Ushers in the Next Generation of Data Protection" by Genevieve R. Walser-Jolly, Esq. A copy of the Alert can be found here. Questions on this new legislation can be directed to Genevieve Walser-Jolly. Read More
In Ames v. T-Mobile USA, Inc., 2018 WL 3417516, at *2 (S.D.Cal., 2018), the District Court dismissed a Rosenthal Act transaction due to the absence of a consumer credit transaction. T-Mobile argues that Plaintiff’s RFDCPA claim fails because Plaintiff does not allege a consumer debt. The existence of a consumer debt is a necessary element of Plaintiff’s RFDCPA claim. Cal.… Read More
In Abernathy v. Continental Service Group, Inc. d/b/a/ Conserve, et. al., 2018 WL 3370524, at *6–7 (D.Nev., 2018), Judge Gordon found that a furnisher properly re-investigated a consumer dispute, evaluating prior disputes in context as well as how much information the consumer gave in the dispute itself. Abernathy's first dispute letter to Experian stated the ConServe account was “not familiar.”… Read More
In Williams v. Nichols Demos, Inc., No. 5:17-CV-07101-EJD, 2018 WL 3046507, (N.D. Cal. 2018), the Honorable Edward Davila of the Northern District of California granted defendants’ motion for judgment on the pleadings and remanded the case back to state court after finding that the plaintiff lacked Article III standing pursuant to the Supreme Court’s ruling in Spokeo, Inc. v. Robins, 136… Read More
In Randall v. Dish Network, LLC, 2018 WL 3235543, at *3 (E.D.N.Y., 2018), Judge Spatt dismissed an FCRA-permissible purpose case premised on identity theft. The Plaintiff has not successfully alleged that Dish negligently violated § 1681q by allowing an identity thief to open an account and perform a consumer credit check on the Plaintiff’s account. “A person cannot obtain information… Read More
In Britton v. ABC Legal Services, Inc., 2018 WL 3207907, at *6–8 (N.D.Cal., 2018), Judge Koh allowed an FDCPA claim to proceed despite the defendant's argument that the Rooker-Feldman doctrine deprived her of jurisdiction. Further, there is a split among district courts in the Ninth Circuit over this issue. Some federal district courts in California have held that an FDCPA… Read More
In Vega v. CarMax Auto Superstores, LLC, 2018 WL 3216347, at *5 (Cal.App. 2 Dist., 2018), the Court of Appeal held in an unpublished decision that a son, whose mother purchased a vehicle for him, could not recover for economic loss and personal injuries sustained when the vehicle he drove malfunctioned and had an accident, causing him personal injury and… Read More
In Reyes v. BCA Financial Services, Inc., 2018 WL 3145807 (S.D.Fla. 2018), the District Court certified a TCPA class action. On that question, the Court agrees with Reyes that she has presented an administratively feasible method of identifying class members. Although “B” flags or “WN” notations may not incontrovertibly establish that BCA dialed a wrong number, and thus would not conclusively… Read More
In Felts v. Wells Fargo Bank, N.A., 2018 WL 3130674 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that a Bank’s reporting of a mortgage account in forbearance as ‘past due’ did not violate the FCRA. The Court of Appeals imposed a causation requirement on an FCRA re-investigation claim, namely that the (un)reasonableness of a re-investigation… Read More
In King v. Time Warner Cable, Inc., 2018 WL 3188716 (2d Cir. 2018), the Court of Appeals for the Second Circuit offered its interpretation of what constitutes an “ATDS” after ACA Int’l. As noted above, in concluding that Time Warner’s calls to King violated the TCPA, the district court relied on the FCC’s 2015 Order, which broadly construed the term… Read More
In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int'l. Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC's rulings with regard to definitions of an ATDS were vacated and, thus,… Read More
In Nitzkin v. Craig, 2018 WL 3074061 (Mich.App.), 3 (Mich.App., 2018), the Michigan Court of Appeals found that a creditor’s in-house counsel’s letters subjected the creditor to liability. With regard to the second and third requirements, the letter and Craig's deposition testimony make it clear that Guardian was collecting a debt owed to it while using the name of another.… Read More
In McNair v. Maxwell & Morgan PC, 2018 WL 3097153 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit clarified when attorneys are engaged in debt collection under the FDCPA. Our decision in Ho does not, however, preclude FDCPA liability for an entity that seeks to collect a debt through a judicial foreclosure scheme that allows for deficiency… Read More
In Karpilovsky v. All Web Leads, Inc., Case No. 17-C-1307, 2018 WL 3108884 (N.D. Ill. 2018), Judge Leinenweber certified a TCPA class. The Plaintiffs, however, retained an expert, Young, who testified that the AWL website was not materially changed during the class period and, for that reason, all members of the proposed class experienced the same information-submission and click-through procedure when… Read More
In Dominguez v. Yahoo!, Inc., -- F.3d ---- (3rd Cir. 2018), the Court of Appeals for the Third Circuit found that Yahoo! did not use an ATDS to send text messages, as the Court of Appeals interpreted the ACA Int’l decision. The decision in ACA International has narrowed the scope of this appeal.16 In light of the D.C. Circuit’s holding, we… Read More
In McMillion v. Rash Curtis & Associates, Case No. 16-cv-03396-YGR, 2018 WL 3023449 (N.D. Cal. Jun3 18, 2018), Judge Gonzales-Rogers declined to revisit her ruling on summary judgment (previously reported on here https://www.severson.com/consumer-finance/district-court-cal-says-defendant-used-atdss-class-period-addresses-whether-calls-many-fdcpa-rosenthal-act-says-medical-debt-consumer-credit-transaction-becau/ or to stay the case pending the outcome of the 9th Circuit’s Marks ruling. First, the District Court declined to reconsider her ruling on summary judgment. Rash Curtis argues that because… Read More
In CFPB v. RD Legal Funding, Inc., 17-CV-890 (U.S.D.C. S.D. N.Y. June 21, 2018), here, Judge Preska disagreed with the DC Circuit’s PHH decision and found the CFPB’s structure unconstitutional. In reaching the question of the constitutionality of Title X of Dodd-Frank, which established the CFPB as an “independent bureau” within the Federal Reserve System, 12 U.S.C. § 5491(a), the… Read More
In Chacon v. Comcast Cable Communications Mgmt., LLC, 2018 WL 3046868, at *3 (N.D.Ill., 2018), Judge Guzman found that a TCPA claim fell outside the scope of an arbitration clause. The critical issue here is whether the second element identified in A.D. for compelled arbitration is satisfied: is the current dispute within the scope of the Subscriber Agreement’s arbitration provision?… Read More
In Chowning v. Kohl’s Department Stores, Inc., 2018 WL 3016908, at *1–2 (9th Cir. 2018), the Court of Appeals for the Ninth Circuit discussed the limited parameters of what is recoverable under California's UCL. Wendy Chowning appeals the district court’s grant of summary judgment to Kohl’s Department Stores, Inc. and Kohl’s Corporation (collectively “Kohl’s”) in her putative class action regarding… Read More
