In Fosnight v. LVNV Funding, LLC, 2015 WL 6394334, at *5 (S.D.Ind.,2015), Judge McKinney found that the FDCPA's $500,000 statutory cap was no impediment to class certification. Defendants' main argument as to the superiority of a class action is based on the propriety of the remedy portion of the FDCPA, which provides for a maximum recovery of $1,000.00 for the class… Read More
In Gardner v. Credit Management, LP, here, Judge Failla found for an FDCPA defendant, disagreeing with the Third Circuit's decision in Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014). To the extent that the Douglass Court was concerned with an account number’s potential for disclosing the recipient’s status as a debtor should a third party choose to investigate the number’s meaning, this… Read More
In Vasquez-Estrada v. Collecto, Inc., 2015 WL 6163971, at *2 (D.Or., 2015), Judge Stewart addressed some FCRA rules for furnishers in the context of identity theft. Defendant also argues that plaintiff has been compensated for these same damages through his settlement with the CRAs in separate litigation. However, the settlement with the CRAs resolved only claims under the FCRA, not… Read More
In Gensel v. Performant Technologies, Inc., 2015 WL 6158072, at *2 (E.D.Wis.,2015), Judge Randa stayed a TCPA case, that was previously stayed under the Primary Jurisdiction Doctrine, because it was likely that the D.C. Circuit will overrule the FCC on the ATDS issue. Performant pins its hopes on the expectation that the appellate courts, particularly the Seventh Circuit, will overrule… Read More
In Ybarra v. Dish Network, L.L.C., 2015 WL 6159755, at *4 (C.A.5 (Tex.),2015), the Court of Appeals for the Fifth Circuit held that the TCPA was not violated when a dialer system designed to leave pre-recorded messages only when a "live" voice is reached did not leave any messages, but disconnected, when it reached an answering machine. The TCPA makes… Read More
In Shamblin v. Obama for America, 2015 WL 6123731, at *1-2 (M.D.Fla., 2015), Judge Covington declined to grant class-wide injunctive relief under the TCPA since she previously denied class certification in the Action. Shamblin seeks an injunction barring the remaining Defendants from any future violations of the TCPA, as follows: "Obama for America and DNC Services Corp., and their respective… Read More
In Heaton v. Social Finance, 2015 WL 6003119, at *3 (N.D.Cal., 2015), Judge Henderson found that defendant's online credit application might be mere comparison shopping such that there was no permissible purpose under FCRA to pull the consumer's credit report. Plaintiffs Shawn Heaton (“Heaton”) and Anna Ahlborn (“Ahlborn”) each visited Defendants' website and had slightly different experiences. Both Plaintiffs registered for the… Read More
In Freyja v. Dun & Bradstreet, Inc., here, Judge Fischer granted summary judgment to a defendant in a TCPA case because human intervention involved in the call disqualified the call as being from an ATDS. The undisputed facts demonstrate that Plaintiff was not called from an ATDS. An ATDS is a piece of “equipment which has the capacity to (a) store or… Read More
In Williams v. T-Mobile USA, Inc., 2015 WL 5962270, at *2 (N.D.Cal., 2015), Judge White held that Plaintiff must plead more than conclusory allegations regarding use of an ATDS. Williams argues that her allegations that T-Mobile made a “barrage” of calls and that the “frequency and pattern of the calls” provide the necessary factual support to conclude that the calls were made… Read More
In Digital Recognition Network, Inc. v. Hutchinson, 2015 WL 5933168, at *1 (C.A.8 (Ark.),2015), the Court of Appeals for the 8th Circuit held that Digital Recognition Network and Vigilant Solutions lack standing to sue the Arkansas Attorney General and Governor to enjoin enforcement of the Arkansas Automatic License Plate Reader System Act, Ark.Code § 12–12–1801 et seq., which prohibited -- and… Read More
In Leyse v. Bank of America Nat. Ass'n, 2015 WL 5946456, at *7 (C.A.3 (N.J.),2015), the Court of Appeals for the Third Circuit said that a roommate who was the regular user of a cell phone was afforded standing by the TCPA. From this evidence, it is clear that the Act's zone of interests encompasses more than just the intended… Read More
In Al-Zaharnah v. Innovative Loan Servicing Company, 2015 WL 5897685, at *2 (M.D.Fla., 2015), Judge Sneed once again denied a TCPA Plaintiff a site inspection request. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet his burden of establishing that Defendant used… Read More
The CFPB fired another shot across the bow today, issuing a proposal for banning class-action waivers in consumer arbitration clause. A copy of the proposal can be found here: http://files.consumerfinance.gov/f/201510_cfpb_small-business-review-panel-packet-explaining-the-proposal-under-consideration.pdf The press release, found here (http://www.consumerfinance.gov/newsroom/cfpb-considers-proposal-to-ban-arbitration-clauses-that-allow-companies-to-avoid-accountability-to-their-customers/) stated: Today the Consumer Financial Protection Bureau (CFPB) announced it is considering proposing rules that would ban consumer financial companies from using “free pass”… Read More
In Finley v. Dynamic Recovery Solutions, LLC, 2015 WL 5728307 (N.D. Cal. 2015), Judge Henderson granted summary judgment to a succession of debt collection agencies based on the staleness of the claim and the lack of imputed knowledge to the latter agencies that the debtor was represented by counsel. The facts were as follows: In June of 2001, banks and… Read More
In Bill v. NCO Financial Systems, Inc., 2015 WL 5715402, at *2 (M.D.Fla., 2015), Judge Sneed denied a TCPA Plaintiff discovery of a site inspection of defendant's facilities. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet her burden of establishing that… Read More
In Thompson v. Wells Fargo & Co., 2015 WL 5730572, at *3-4 (E.D.N.Y.,2015), Judge Garaufis find an automobile finance company not vicariously liable for a tort committed by the repossession during the course of the repossession. Defendant argues that it cannot be held liable for the alleged damage to Plaintiff's home because “[a]s a matter of law, Wells Fargo is not… Read More
In In re Penrod, --- F.3d ---- (2015), the Court of Appeals for the Ninth Circuit found that the debtor who prevailed in the “hanging-paragraph” litigation was entitled to attorneys’ fees under Civil Code § 1717. AmeriCredit does not contest that the contract contains a unilateral attorney’s fees provision for purposes of the second condition. Nor does it contest that… Read More
In Galper v. JP Morgan Chase Bank, N.A., 2015 WL 5711882, at *5-8 (C.A.2 (N.Y.),2015), the Court of Appeals for the Second Circuit held that New York's ID Theft Laws were not preempted by FCRA with respect to furnisher misconduct that was not regulated by 15 USC 1681(s)-2 of FCRA. Here, the language of the provision expresses Congress's intent to preempt… Read More
In Nussbaum v. Diversified Consultants, Inc., 2015 WL 5707147, at *3 (D.N.J.,2015), Judge Thompson declined to stay a TCPA claim merely because industry had appealed to the D.C. Circuit the FCC's order on what constitutes an ATDS under the TCPA. With respect to the third factor, the Court considers whether a stay would simplify the issues and the trial of the case.… Read More
In Bee, Denning, Inc. v. Capital Alliance Group, 2015 WL 5675798, at *1-2 (S.D.Cal.,2015), Judge Bashant certified fax-blast and cell-phone classes arising from a telemarketing scheme that included unsolicited faxes followed by automated calls to cellular telephones. The facts were as follows: The allegations at the heart of this case involve a familiar feature of the modern business and consumer landscape-telemarketing.… Read More
