In Sterk v. Path, Inc., --- F.Supp.2d ----, 2014 WL 2443785 (N.D.Ill. 2014), Judge Der-Yeghiayan found, after discovery was permitted on the subject, that a text message service used an ATDS within the meaning of the TCPA. The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to… Read More
In Passero v. Diversified Consultants, 2014 WL 2257185 (W.D. N.Y. 2014), here, Judge Curtin stayed a TCPA case against a Debt Collector who placed multiple calls to plaintiffs’ cellular telephone service in an effort to collect on a debt incurred by a non-party. As indicated by the pleadings and submissions presently before the court, DCI has raised questions in this case… Read More
In Gusman v. Comcast Corp., 2014 WL 2115472 (S.D.Cal. 2014), Judge Curiel stayed a TCPA reassigned number case based on the FCC’s primary jurisdiction. Recently, district courts have stayed cases concerning this particular issue of whether liability attaches for calls placed to reassigned telephone numbers based on these petitions before the FCC. Fontes v. Time Warner Cable Inc., No. 2:14cv2060–CAS(CWx),… Read More
In Rowell v. NCO Financial Systems, Inc., 2014 WL 2154422 (D.Kan. 2014), Judge O’Hara held that the TCPA’s imposition of strict liability did no immunize a TCPA plaintiff from discovery, and ordered the Plaintiff to respond to broad-reaching discovery propounded by the Defendant. The TCPA plaintiff was ordered to respond to interrogatories seeking all communications between the Plaintiff and the… Read More
In Grace v. LVNV Funding, Inc., 2014 WL 2167487 (W.D.Ky. 2014), Judge Heyburn found that an 18% “service charge” charged for late payments in a medical services contract was disguised “interest” that violated Kentucky’s usury laws and the FDCPA. Judge Heyburn denied summary judgment to the Plaintiff, however, because it was not clear that the misconduct occurred during the FDCPA’s… Read More
In Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. 2014) here, Judge Burns granted summary judgment to the Defendant on Plaintiff’s TCPA and UCL claims. For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he… Read More
In Chulick–Perez v. Carmax Auto Superstores California, LLC, 2014 WL 2154479 (E.D.Cal. 2014), Judge Nunley granted a car dealer's motion to dismiss a Plaintiff's claim that a dealer's used-vehicle certification program violated Song-Beverly, the CLRA and the UCL. The facts were as follows: On December 16, 2011, Plaintiff Michelle Chulick–Perez (hereinafter “Plaintiff”) bought a 2003 BMW X5 (hereinafter “the vehicle”) from… Read More
In Cherkaoui v. Santander Consumer USA, Inc., here, the District Court granted Santander’s Motion for Summary Judgment on Plaintiff’s TCPA claim. The District Court found that the Plaintiff consented to be called on his cellular telephone by providing his cellular telephone number in his credit application for the purchase of a vehicle. Plaintiff offered self-serving testimony that he had revoked… Read More
In Forkum v. Co-Operative Adjustment Bureau, Inc., --- F.Supp.2d ----, 2014 WL 2119922 (N.D.Cal. 2014), Judge Armstong granted summary judgment to an FDCPA plaintiff who alleged that the Debt Collector did not leave the truncated mini-Miranda on a voicemail message that was left in response to the Plaintiff’s own telephone call. The Court finds the following facts undisputed. Plaintiff is… Read More
In Varnado v. Midland Funding LLC, --- F.Supp.2d ----, 2014 WL 1994622 (N.D.Cal. 2014), Judge Ryu found that the Plaintiff stated no claim for negligent infliction of emotional distress against a debt collector nor any claim for punitive damages. Judge Ryu found, however, that a claim for intrustion on seclusion was stated. Judge Ryu found that debt collectors do not… Read More
In Rector v. WFDS, here, Judge Fischer granted summary judgment on Plaintiff's TCPA, FDCPA, and Intrusion on Seclusion claims. Plaintiff, a third party who was listed as credit reference on customer's credit application, claimed that Wells Fargo made dialer calls to his cell phone. Wells Fargo made a handful of calls to Plaintiff to question the whereabouts of the customer… Read More
In Dominguez v. Yahoo! Inc., --- F.Supp.2d ----, 2014 WL 1096051 (E.D.Pa. 2014), Judge Baylson rejected the FCC’s interpretation of what an ATDS is, and found that an ATDS must have the present capacity to randomly generate numbers, which Yahoo!’s dialer did not. However, these acknowledgements do not resolve the crux of the issue: whether the system had the capacity… Read More
In Higgenbotham v. Diversified Consultants, Inc., 2014 WL 1930885 (D.Kan. 2014), Judge O'Hara stayed a TCPA case against a debt collector based on the Primary Jurisdiction Doctrine. The court finds that the situation in this case fits the purpose of the doctrine. Here is a recap of what we know: (1) Plaintiff alleges that one of the two ways defendant… Read More
In Barrera v. Comcast Holdings Corporation, 2014 WL 1942829 (N.D.Cal. 2014), Judge Henderson stayed a TCPA case against a debt collector under the Primary Jurisdiction of the FCC. Plaintiff, in opposition, argues that the FCC's resolution of this issue will not be relevant and will have “little to no” effect on the outcome of the case. Opp'n at 2. According to… Read More
In Legg v. Voice Media Group, Inc.--- F.Supp.2d ----, 2014 WL 2004383 (S.D.Fla. 2014), Judge Cohn denied summary judgment to both sides on whether an ATDS was used in a TCPA text message case. The facts were as follows. This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. (“VMG”) allegedly sent to Plaintiff Christopher… Read More
In Loeffler v. Target Corp., --- P.3d ----, 2014 WL 1714947 (2014), the California Supreme Court held that California’s consumer protection codes can not supplant the limitations and procedures set forth in the Revenue and Taxation Code. Plaintiffs are consumers who contend that defendant retailer represented that it properly was charging and in fact charged them sales tax reimbursement on… Read More
In Delgado v. Progress Financial Co., 2014 WL 1756282 (E.D.Cal. 2014), Judge O’Neill ordered a Plaintiff’s TCPA and FDCPA claims to arbitration. Mr. Delgado does not dispute that he signed the Arbitration Agreement at the time he applied for a loan from Progreso Financiero; nor does he dispute the validity of the agreement. Doc. 14 at 2. Mr. Delgado argues,… Read More
In Chyba v. First Financial Asset Management, Inc., 2014 WL 1744136 (S.D.Cal. 2014), Judge Benitez found that even if Plaintiff created a triable issue of fact as to whether she gave prior express consent to be called on her cellular telephone, a third-party debt collector had a good faith basis to believe that Plaintiff had provided consent to the creditor… Read More
On June 27, 2014, Judge Saylor of the U.S.D.C. in Massachusetts in Davis v. Diversified Consultants, Inc, here, concluded that the LiveVox technology was an ATDS under the FCC's rules, and granted summary judgment to the Plaintiff on his TCPA claim. Judge Saylor's decision echoes that of Judge Ungaro of the U.S.D.C. for the Southern District of Florida in Lardner v. Diversified… Read More
In Legg v. Voice Media Group, Inc., 2014 WL 1767097 (S.D.Fla. 2014), Judge Cohn struck a TCPA Plaintiff’s expert’s testimony regarding whether Defendant’s dialer was an ATDS under the TCPA. In the Supplemental Snyder Declaration and the Second Supplemental Snyder Declaration, Snyder opines that the systems VMG used to send its text messages satisfy the TCPA's definition of an automatic… Read More
