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CEB Prac. Guide § 2B.15: Prior Express Consent

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District Court (Oh.) Distinguishes Between ADAD Calls to Land-Lines and Cellular Telephones Under the TCPA

by Scott J. Hyman |

In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter.    As to land lines, Judge Watson found no claim because an established business relationship existed:… Read More

9th Cir. Says District Court Erred in Quantum of Proof Defendant Must Show under CAFA to Remove a TCPA Case; States ‘Express Consent’ is an Affirmative Defense on Which Defendant Bears the Burden of Proof

by Scott J. Hyman |

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

District Court (Ill.) Orders Discovery on Consent Defense under TCPA

by Scott J. Hyman |

In Martin v. Bureau of Collection Recovery,  2011 WL 2311869 (N.D.Ill. 2011), Judge St. Eve ordered discovery against a debt collector on it’s ‘consent’ defense under the TCPA, rejected the argument that evidence of consent was in the possession of the debt-collector’s clients or other third parties.  Judge St. Eve explained:    The TCPA prohibits making “any call (other than… Read More

District Court (Ca.) Holds Consent to Call Cell Phone under TCPA Can Be Orally Revoked; Monetary Charge to Cell Phone Not Required to Trigger TCPA

by Scott J. Hyman |

In Gutierrez v. Barclays Group, 2011 WL 579238 (S.D.Cal. 2011), Judge Sabraw held that a consumer survived summary judgment on the consumer’s TCPA claim.  Judge Sabraw held that any consent given by the consumer to be called on the consumer’s cellular telephone could, and was, revoked.  Judge Sabraw also held that the consumer need not prove that he/she was charged… Read More

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