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
In Ereikat v. Michael & Associates, PC, 2015 WL 4463653 (N.D.Cal., 2015), Judge Corley granted summary judgment to a debt collection law firm whose state court collection action named an "aka" of the debtor listed in the debtor's TU consumer report that also matched the debtor's husband's name. But Defendant is nonetheless entitled to summary judgment because the Court concludes that… Read More
In Keating v. Peterson's Nelnet, LLC, 2015 WL 4430355 (6th Cir. 2015), the Court of Appeals for the Sixth Circuit affirmed summary judgment in favor a TCPA defendant on whose behalf unauthorized text messages were sent. First, the Sixth Circuit found that texts were "calls" under the TCPA. Neither the plaintiff nor the defendants contest the inclusion of text messages… Read More
In Beauvoir v. Israel, 2015 WL 4429757 (2d Cir. 2015), the Court of Appeals for the Second Circuit limited the definition of "debt" under the FDCPA to consensual transactions. Although we have not previously had occasion to address whether money owed as a result of theft constitutes a “debt” for purposes of the FDCPA, several of our sister circuits have addressed… Read More
In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations. Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More
In McBeth v. Credit Protection Ass'n, L.P, 2015 WL 4429324, at *3-4 (M.D.Fla.,2015), Judge Honeywell said that neither party wins on MSJ on the issue of willfulness under the TCPA. Both parties argue that they are entitled to summary judgment with regard to treble damages for “knowing” or “willful” violations of the TCPA. McBeth argues that “knowing” or “willful” should be… Read More
In Reardon v. Uber Technologies, Inc., 2015 WL 4451209 (N.D.Cal., 2015), Judge Tigar dismissed part of a TCPA class action filed against Uber for recruitment texts to potential drivers. Here, Uber argues that the text messages it allegedly sent cannot be said to “constitute telemarketing” or to “include or introduce an advertisement” because the texts do not promote its provision… Read More
In Flores v. Adir International, LLC, 2015 WL 4340020, at *2-5 (C.D.Cal., 2015), Judge Birotte dismissed a TCPA class action with prejudice because he believed Plaintiffs could not plead facts to support their contention that text messages were sent by an ATDS. Defendant moves to dismiss both of Plaintiff's claims under the TCPA for failure to allege that Defendant contacted Plaintiff… Read More
In Miller v. Merchants Credit Adjusters, Inc., 2015 WL 4205159 (D.Neb.,2015), Judge Bataillon allowed a TCPA Plaintiff to amend his complaint to add the principals upon whose behalf a debt was being collected because, as the Court explained, the TCPA permits respondeat superior theories. “While section 227(b) does not contain a provision that specifically mandates or prohibits vicarious liability, we… Read More
In Murray v. Choice Energy, LLC, 2015 WL 4204398 (S.D.Ohio,2015), Judge Black found no direct or vicarious liability for an energy company on whose behalf telemarking calls were allegedly improperly made to the TCPA Plaintiffs. Attached to the crossclaim complaint are a Services Agreement and Turnkey Telemarketing Sales Outsourcing Agreement (“Outsourcing Agreement”) entered into between Choice Energy and Premiere. (Id… Read More
In Consumer Financial Protection Bureau v. Frederick J. Hanna & Associates, P.C., Judge Totenberg rejected a debt collection law firm's constitutional challenge under the Noerr-Pennington doctrine and the equal protection doctrine to the CFPB's authority to bring claims against it. As to the latter, the District Court found no equal protection violation for placing debt collection law firm's clients on different… Read More
ACA International, the national debt collectors' trade organization, sued the FCC to challenge the FCC's declaratory ruling on the TCPA. A copy of the lawsuit can be found here: ACA Petition for Review 7-13-15. The ACA's press-release described the substance and purpose of their action: ACA International has been at the forefront of a long-time effort to clarify application and… Read More
In Evankavitch v. Green Tree Servicing, LLC, 2015 WL 4174441 (3d Cir. 2015), the Court of Appeals for the Third Circuit found that a debt collector bears the burden of proving that its communications with third parties were permitted attempts to confirm or correct location information. The 3rd Circuit stated that communications with third parties to obtain location information… Read More
In Skinner v. Bluestem Brands, Inc., 2015 WL 4135269 (S.D.Miss.,2015), Judge Reeves denied summary judgment to a creditor making calls to collect a debt, rejecting the argument that the credit agreement superseded revocation rights under the TCPA. In 2012, Barbara Skinner opened a line of credit with Fingerhut, a catalog sales company, to purchase goods from Fingerhut. In so doing she… Read More
In Chae v. SLM Corporation, 593 F.3d 936 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Circuit held that the federal Higher Education Act preempts student borrowers' claims that Sallie Mae, Inc.'s interest rates, late fees, and payment schedules violate California law. In conclusion, the Plaintiffs’ allegations that Sallie Mae makes fraudulent misrepresentations in its billing statements and coupon books are… Read More
In Wheeler v. Premiere Credit of North America, LLC, 2015 WL 222459, at *1-2 (S.D.Cal.,2015), Judge Curiel found that the HEA did not preempt the FDCPA, but did preempt the Rosenthal Act -- as to the claims pleaded. The facts were as follows. Defendant is an accounts receivable contractor authorized to perform collection activities on defaulted student loans on behalf… Read More
The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments. For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More
In King v. Time Warner Cable, 2015 WL 4103689 (S.D.N.Y.,2015), Judge Hellerstein refused to stay a TCPA "called party" case under the Primary Jurisdiction Doctrine. “[P]rior express consent by the called party” is a safe harbor against liability under the TCPA, 47 U.S.C. § 227(b)(1)(A), and TWC claims that Luiz Perez, the prior owner of Ms. King's phone number, consented… Read More
In Thrasher v. CMRE Financial Services, Inc., 2015 WL 1138469 (S.D.Cal. 2015), Magistrate Stormes ordered a TCPA class-action defendant to produce outbound call lists, information on use of an ATDS, and ESI related to the putative classmembers’ consent. The Magistrate ordered production of the outbound call lists. The court finds that the outbound call list is reasonably calculated to identify the… Read More
In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765, (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed. As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure: name, company,… Read More
