In Bais Yaakov of Spring Valley v. ACT, Inc., 2015 WL 4979406, at *3 (C.A.1 (Mass.),2015), the First Circuit Court of Appeals held that a TCPA defendant can not moot a class action by picking off the named plaintiff through a Rule 68 offer. Against this background, ACT advances a nifty stratagem for defeating motions for class certification: offer only the… Read More
In Murphy v. DCI Biologicals Orlando, LLC, 2015 WL 4940800, at *1 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit affirmed the FCC's rulings on what constitutes prior express consent in a TCPA/debt collection case. Mr. Murphy alleged that DCI stored donor record information on a commercial database it operated and that it provided the donor information to third… Read More
In Hill v. Homeward Residential, here, the Court of Appeals for the Sixth Circuit rejected the contention that consent to be called on one's cellular telephone can only be given at the inception of the transaction and not during the life of the transaction. "The Telephone Consumer Protection Act prohibits companies from making automated calls to a person’s cellphone without… Read More
In Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More
In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More
How could anyone forget the original Star Wars Trilogy (later renumbered by George Lucas as Episodes 4 through 6)? In the original hit, the galaxy was under the spell of the Dark Side of the Force as personified by the Evil Emperor and his henchman, Darth Vader. Against all odds and thanks to their daring-do, the Jedi Knights and their… Read More
Granting certiorari in Spokeo, Inc. v. Robins, the United States Supreme Court will consider whether Congress can confer standing to sue upon consumers who allege violations of federal statutory rights, without any actual injury, in order to seek awards of statutory penalties. 135 S. Ct. 1892 (Apr. 27, 2015). This is an issue of potentially far-reaching significance to consumer lenders,… Read More
Twenty-three states, plus Washington, D.C., have legalized medical marijuana. Another seven states have passed laws permitting limited medical use of non-psychoactive strains of marijuana. Alaska, Colorado, Oregon, Washington and Washington, D.C. have legalized recreational marijuana. At least a dozen more states are expected to see bills and ballot measures aimed at legalizing recreational marijuana in the next two years. Regardless… Read More
“It ain’t over till it’s over,” according to a unanimous U.S. Supreme Court in deciding whether a bankruptcy court’s order denying plan confirmation is a final order for the purposes of appeal. Bullard v. Blue Hills Bank, ___ U.S. ___, 135 S. Ct. 1686, 1693 (2015). In ruling that such an order is not final, the Court has reduced debtors’… Read More
Does your employee handbook contain a policy prohibiting insubordination or the use of company logos, trademarks or confidential information? If so, your handbook is likely in violation of the National Labor Relations Act (“NLRA”), and this article is written for you––even if you do not have a unionized workforce! The National Labor Relations Board (“NLRB”), which acts to prevent unfair… Read More
The Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act” or the “Act”), the California version of the federal Fair Debt Collection Practices Act (“FDCPA”), prohibits debt collectors from engaging in certain practices while collecting consumer debts. But not all consumer debts are subject to the Rosenthal Act; and though the FDCPA is incorporated into the Act, because its definitions are… Read More
It does not matter whether the lawsuit asserts claims under the Fair Credit Reporting Act (“FCRA”), California’s Consumer Credit Reporting Agencies Act (“CCRAA”), or the myriad of consumer protection laws applicable to consumer finance litigation––consumers regularly request in settlement that the creditor delete the tradeline associated with the account in dispute. Deletion of a tradeline is a remedy that consumers… Read More
California Civil Code Section 3068(a) provides that a person who incurs costs for repair, labor, furnished supplies and materials or storage of a vehicle is entitled to a lien on the vehicle to compensate him/her for the costs incurred. The lien arises at the time a written statement of charges for completed work or services is presented to the registered… Read More
In Rouse v. Delta Air Lines, Inc., 2015 WL 4636726 (D.Minn.,2015), Judge Magnuson held that a TCPA Text-Message Plaintiff survived a Motion to Dismiss on whether the Complaint adequately pleaded use of an ATDS. The facts were as follows: In late 2014, Plaintiff Kevin Rouse received a text message on his personal cell phone from Defendant Delta Air Lines, asking… Read More
In Littleton v. Experian Information Solutions, Inc., 2015 WL 4638308, at *2 (N.D.Cal., 2015), Judge Davila dismissed a FCRA claim, with leave to amend, because the Plaintiff failed to allege the inaccuracy. SunTrust argues the FCRA claim is insufficient because Plaintiff failed to describe what information SunTrust allegedly communicated to the consumer reporting agencies, as well as why this information… Read More
The Firm's Eric Troutman expounds on the FCC's recent TCPA Ruling, and the breadth of its definition of an ATDS: TCPA Article on Smartphones as AutoDialers. Read More
In Ikuseghan v. MultiCare Health System, 2015 WL 4600818, (W.D.Wash.,2015), Judge Settle found that the TCPA affords Article III standing to litigants, and certified a TCPA class. As to standing, Judge Settle found: MultiCare first argues that Ikuseghan lacks Article III standing to bring this suit. . . . In addition to economic injury, Ikuseghan alleges that MultiCare violated her statutory rights… Read More
Today, the California Supreme Court handed car dealers and auto finance companies an important victory, upholding the arbitration clause in the standard form automobile purchase contract used by most dealers in the Golden State. (Sanchez v. Valencia Holding Co., LLC. (S199119; Aug. 3, 2015).) A copy of the California Supreme Court's decision can be found here. The California Supreme Court… Read More
In Loebenstein v. Chase Bank, 2015 WL 4478136 (D.N.J.,2015), Judge Arpert declined to stay a TCPA case filed by the Plaintiff that sought relief under the TCPA for “wrong party calls”, which arise when a company obtains the telephone number at issue from one of its customers who, after providing the number to the company, and unbeknownst to the company, ceases use… Read More
In Valladares v. Blackboard, Inc., 2015 WL 4466839 (N.D. Ill. July 21, 2015), Judge Der-Yeghiayan denied a request to stay a TCPA case because the petition pending before the FCC differed from the issues. in the case. Defendants request in the alternative that the court stay the instant action, pending a decision by the FCC. Defendants argue that they have petitioned… Read More
