In Roberts v. PayPal, Inc., --- Fed.Appx. ----, 2015 WL 6524840 (9th Cir. 2015), the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to PayPal in a TCPA matter based on a finding that the consumer had consented to receive text messages on his cellular telephone. David Roberts appeals the district court’s grant… Read More
In Blair v. CBE Group, Inc. 2015 WL 5086375 (S.D.Cal. 2015), Judge Anello denied certification of a TCPA class defined as "Skip Trace Class: All persons within the United States to whom CBE placed a call to a cellular telephone at a number that CBE did not obtain either prior express consent from the debtor, and that call was made using… Read More
In Huricks v. Shopkick, Inc., 2015 WL 5013299, at *1 (N.D.Cal., 2015), Judge Chesney granted summary judgment to a TCPA defendant based on the FCC's 2015 order. In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege that Shopkick “operates a shopping application for Apple and Android devices that urges consumers to purchase retail goods for sale close to… 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 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
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
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 Smith v. NCO Financial Systems, Inc., 2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per's TCPA complaint. Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff's exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the… Read More
In Alvarado v. Credit Protection Ass’n, L.P, 2015 WL 1815863 (M.D. Fla. 2015), Judge Covington held that, although a debtor consented to have his cell phone called when he provided the number in connection with the transaction creating the debt, a triable issue of fact existed as to whether a “pre-suit demand letter” constituted revocation of consent. Here, when Plaintiff… Read More
In Soulliere v. Central Florida Inv., Inc., 2015 WL 1311046 (M.D.Fla. 2015), Judge Whittemore found that a non-subscriber/regular user of a cellphone had standing to bring a TCPA claim and that there was a triable issue of fact regarding whether there was consent or whether such consent had been revoked. Defendants argue that Plaintiff does not have standing because he… Read More
In Baisden v. Credit Adjustments, Inc., 2015 WL 1046186 (S.D.Ohio 2015), Judge Sargus found that a Hospital’s intake procedures provided sufficient documentationt that a patient consented to be called by an autodialer on his cellular telephone by the Hospital’s affiliate, an anesthesiologist as well as by the anesthesiologist’s debt collection agency. In accordance with this reasoning, this Court finds Plaintiffs'… Read More
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 Daniels v. ComUnity Lending, Inc., 2015 WL 541299 (S.D.Cal. 2015), Judge Hayes properly analyzed the distinction between the TCPA’s regulation of cellular and residential lines. The Moving Defendants contend that Plaintiffs have failed to state a violation of the TCPA for making calls to Plaintiffs' residential telephone lines because the Moving Defendants had an established business relationship with Plaintiffs,… Read More
In Orr v. Credit Protection Ass'n, L.P., 2015 WL 439343 (M.D.Fla. 2015), Judge Corrigan denied summary judgment on the basis that a triable issue of fact existed as to whether a TCPA customer had, in fact, given consent to be autodialed on her cellular telephone. The key issue is therefore whether either Mr. or Mrs. Orr provided prior express consent to call… Read More
In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation. Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of… Read More
In Lee v. Gulf Coast Collection Bureau, 2014 WL 6978760 (M.D.Fla. 2014), Judge Bucklew denied summary judgment to a TCPA defendant because, where multiple medical services were given to the Plaintiff, the Defendant's Motion did not connect each call made to each service for which consent was given. Defendant argues that it called Plaintiff's cell phone with Plaintiff's prior express consent,… Read More
In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage. The facts were as follows: Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection… Read More
In Toney v. Quality Resources, Inc., --- F.Supp.3d ----, 2014 WL 6757978 (N.D.Ill. 2014), Judge St. Eve found that the Defendant’s efforts to “upsell” the debtor on other products (so-called “dual purpose” calls) exceeded the limited consent the consumer had given to be called on her cellular telephone. The facts were as follows: Toney alleges that on December 8, 2012,… Read More
In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More
