In Carr v. Credit One Bank, 2015 WL 9077314, at *3-4 (S.D.N.Y. 2015), Judge Kaplan grudgingly ordered a TCPA case to arbitration. Plaintiff's final argument is that the TCPA claim is outside the scope of the arbitration clause. The parties do not appear to have considered whether this is a question for the Court or for an arbitrator, although plaintiff argues… Read More
In Madrigal v. C-Two Group, Inc., et. al, 2015 WL 8477487, at *7-8 (N.D.Cal. 2015), Judge Gilliam certified a TCPA text message class action. The facts were as follows: C & L is the owner of the Club, and it hired C-Two Group as its manager. C-Two hired the vendor Metrowize, which is not a party to this action, to… Read More
In Key v. Integrity Surveillance Solutions, Inc., 2015 WL 8178055, at *3 (E.D.Mich. 2015), Judge Cohn issued pre-certification class discovery on a TCPA class action. Integ says that Plaintiffs intend to circumvent the Court's order limiting discovery with the main intent to determine class members from a reverse phone search in order to strength their case. Specifically, Integ relies on… Read More
In Natalini v. Import Motors, Inc., 2015 WL 8772839, at *2-3 (Cal.App. 1 Dist., 2015) (unpublished), the Court of Appeal was called upon to determine post-Sanchez whether a car dealer's petition to arbitrate should still be denied once the unconscionability analysis is removed. The Court of Appeal said that there was an insufficient evidentiary basis upon which the existence of a valid arbitration clause… Read More
Okay, so it's probably not the same guy. In Randy Johnson v. Navient Solutions, Inc. 2015 WL 8784150, at *1-2 (S.D.Ind., 2015), Judge McKinney refused a Spokeo stay because the Plaintiff said that he had actual damages, even if he had no evidence to prove it. Johnson also claims that he is asserting a claim for actual damages/actual injury and that his failure to produce… Read More
In Wright v. Target Corporation, 2015 WL 8751582, at *7 (D.Minn., 2015), Judge Nelson denied summary judgment, saying there were triable issues of material fact as to whether the debtor orally revoked revocation of consent under the TCPA. The District Court found that the Target credit card agreement did not preclude revocation of consent. Defendant also argues that Wright could… Read More
In Yaakov of Spring Valley v. Graduation Source, LLC, 2015 WL 8784250, at *3 (S.D.N.Y., 2015), Judge Roman refused to stay a TCPA case pending the outcome of SCOTUS jurisprudence because of a factual question whether the Defendant's Rule 68 offer was adequate. This Court agrees with the reasoning outlined in Kaye. In light of the difference between Defendants' offer of… Read More
In Sherman v. Yahoo!, Inc., 2015 WL 8757028, at *4-5 (S.D.Cal. 2015), Judge Curiel found a question of fact on whether Yahoo!'s IM system required human intervention. To support its position, Yahoo relies on district court cases, which have held that where a message must be “triggered” by human intervention, the system is not an ATDS. (ECF No. 134-1 at 8-12… Read More
In Lindblom v. Santander Consumer USA, Inc., 2015 WL 8483118, at *1 (E.D.Cal., 2015), Judge O'Neill granted summary judgment to an automobile finance company against claims arguing that its fees associated with "SpeedPay" were not permissible. Plaintiff purchased a car, which she financed with a loan that Santander eventually began to service. FAC at ¶¶ 1-2. Plaintiff made payments on the… Read More
In Auto Liquidation Center, Inc. v. Chaca, 2015 WL 8479305, at *3 (Ind.App.,2015), a jury returned a verdict for Jorge on all counts, awarding damages in the amount of $45,883.86 for the conversion claim and the trial court entered a final judgment for Jorge in the amount of $121,069.66, which included prejudgment interest and attorney's fees. The customer had taken the… Read More
In DIRECTV, Inc. v. Imburgia, 2015 WL 8546242, at *1-2 (U.S.Cal.,2015), the Supreme Court of the United States once again affirmed its preference for arbitration, and killed the "poison-pill" argument that had gathered fancy amongst the plaintiff's bar. Petitioner DIRECTV, Inc., and its customers entered into a service agreement that included a binding arbitration provision with a class-arbitration waiver. It specified… Read More
In Harley-Davidson Credit Corp. v. Galvin, 2015 WL 8121856, at *4-7 (1st Cir. 2015), the 1st Circuit Court of Appeals reversed summary judgment for an airplane finance company, finding that sale of the repossessed airplane through a dealer might not have been commercially reasonable. Under Nevada law, a creditor may demonstrate that a sale through a dealer was “commercially reasonable”… Read More
In Parker v. Capital One Auto Finance, et. al. 2015 WL 7864182, at *2 (S.D.Ind., 2015), Judge Magnus-Stinson held that auto finance companies collecting their own debts were not subject to the FDCPA. The FDCPA . . .“applies only to ‘debt collectors' seeking satisfaction of ‘debts' from ‘consumers'; it does not apply to ‘creditors.’ ” McKinney v. Cadleway Properties, Inc., 548 F.3d 496,… Read More
In Peak v. Professional Credit Service, 2015 WL 7862774, at *5-6 (D.Or., 2015), Judge Aiken granted summary judgment to a debt collector who was sued by a debtor for a collection v/m to which the debtor allowed access to a third party. Finally, defendant contends the voicemail messages were not communications “with” third parties because it had no reason to suspect… Read More
In Pirrone v. NCO Financial Systems, Inc., 2015 WL 7766393, at *1 (E.D.Pa., 2015), Judge Beetlestone followed the Douglass decision, finding that a QR code was the same as an account code that the FDCPA prohibited from being seen on or through the envelope. Plaintiff's claims are based on Section 1692f(8) of the FDCPA, which prohibits using “unfair or unconscionable means to… Read More
In Prescott v. Seterus, Inc., 2015 WL 7769235, at *3-4 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit held that a reinstatement letter that required the debtor to pay estimated future attorneys' fees as a condition of reinstatement violated the FDCPA because the demand was inconsistent with the security agreement. The security agreement does obligate Prescott to pay… Read More
In Daniel v. Ford Motor Co., 2015 WL 7740646, at *2-4 (9th Cir. 2015), the Court of Appeals for the 9th Circuit stated that "The focus of this case is whether Ford Motor Company sold the plaintiffs a pig in the poke." Cute. But, they felt the need to footnote what the quote actually meant: The English colloquialisms such as… Read More
As subscribers know, industry is challenging the FCC's Omnibus Ruling as exceeding its regulatory and rulemaking powers. Severson is at the forefront of that litigation, having filed yesterday an amicus brief on behalf of industry in support of industry's petition. A copy of the petition can be found here and copy of the petitioner's opening brief can be found here. … Read More
In Melito v. American Eagle Outfitters, Inc., 2015 WL 7736547, at *4-5 (S.D.N.Y., 2015), Judge Caproni dismissed a TCPA class action against Experian for unsolicited texts sent by American Eagle in connection with a marketing campaign. First, the Court found no direct liability under the TCPA. The plain language of section 227(b)(1)(A)(iii) imposes liability upon persons that “make” a telephone call… Read More
In In re: Life Time Fitness, Inc. TCPA Litigation, 2015 WL 7737335, at *1-2 (D.Minn., 2015), Judge Ericksen gave final approval to a TCPA class action settlement with the following basic terms: In the Agreement, Defendant agreed to make a Total Settlement Payment of at least $10,000,000 and no more than $15,000,000. Defendant's Total Settlement Payment covers Settlement Costs, Cash Awards,… Read More
