Affirmative Defenses

In Wallace v. Optimum Outcomes, Inc., 2015 WL 627944 (E.D.N.C. 2015), Judge Flanagan entered summary judgment for a TCPA plaintiff who had told a debt collector not to call anymore on one cell phone number but continued to receive calls on another cell phone number. Pertinent to the facts of this case and the earlier one intertwined with it, initiated… Read More

In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… 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

In Olney v. Job.com, Inc., 2014 WL 1747674 (E.D.Cal. 2014), Judge O’Neill found trial issues of fact and denied summary judgment to a TCPA defendant who the Resume–Now's resume posting service, a service that is offered only to subscribing members and to whom Plaintiff had provided his cellular telphone number. Plaintiff misinterprets Satterfield. “The FCC appears to have intended in… Read More

In Sharp v. Allied Interstate Inc., 2014 WL 1224656 (W.D.N.Y. 2014), Judge Skretny denied summary judgment to a defendant collecting on a cellular telephone bill due to a failure to prove consent. This Court has previously ruled that a consumer has consented to calls even if the cell phone number was not provided at the time the account was opened.… Read More

In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim. It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to… Read More

In Gomez v. Campbell-Ewald Co., 2013 WL 655237 (C.D.Cal. 2013), Judge Gee found that a claim against a contractor that sent text messages to cellular telephone as part of the US Navy’s marketing campaign fell within the TCPA’s 4-year federal catch-all statute of limitations. In its motion for judgment on the pleadings, Defendant contends that Plaintiff's claim is time-barred by… Read More

In Wellington Homes, Inc. v. West Dundee China Palace Restaurant, Inc., --- N.E.2d ----, 2013 IL App (2d) 120740, 2013 WL 414236 (Ill.App. 2 Dist. 2013), the Illinois Court of Appeal found that the 4-year federal catch-all statute of limitations applies to TCPA actions, not shorter state-court statutes of limitations.  This interlocutory appeal pursuant to Illinois Supreme Court Rule 308… Read More

In Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039 (N.D.Ala. 2012), Judge Smith dismissed a TCPA texting class action because Plaintiff had provided her cellular telephone number to Wal-Mart at the time of sale. Plaintiff's putative class action complaint asserts a single cause of action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More

In Scott v. Merchants Ass'n Collection Div., Inc., 2012 WL 4896175 (S.D.Fla. 2012), Judge O’Sullivan found that the Plaintiff’s pleading burden in a TCPA cell phone case did require the Plaintiff to plead an absence of consent because consent is an affirmative defense borne by the Defendant. As explained by this Court: “to establish a TCPA violation, Plaintiff must demonstrate… Read More

In Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), Judge Tharpe held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA.  Judge Tharpe found that the consumer had to consent to be ‘robo-called’. In this putative class action brought pursuant to the Telephone… Read More

The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden.  The unpublished decision dealt with whether the District Court erred in remanding the… Read More

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More

In Grant v. Capital Management Services, L.P., 2011 WL 3874877 (9th Cir. 2011), the Court of Appeals held that the District Court erred in the quantum of proof it required the Defendant to demonstrate in removing a TCPA case under CAFA.    Because neither the size of the proposed class nor the total amount in controversy was apparent from the… Read More

In Powell v. West Asset Management, Inc., --- F.Supp.2d ----, 2011 WL 1126040 (N.D.Ill. 2011), Judge Darrah found that the TCPA imposes no duty to mitigate on behalf of consumers receiving unsolicited telephone calls.  Judge Darrah set forth the facts as follows:   The following facts are drawn from Plaintiff's Complaint and are accepted as true for purposes of the… Read More