CEB Prac. Guide § 2B.23: ATDS

In Bill v. NCO Financial Systems, Inc., 2015 WL 5715402, at *2 (M.D.Fla., 2015), Judge Sneed denied a TCPA Plaintiff discovery of a site inspection of defendant's facilities. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet her burden of establishing that… Read More

In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate's ruling on summary judgment in favor of a TCPA defendant. In his objections, plaintiff takes issue with the magistrate judge's determination that SkyCreek did not utilize an ATDS when making calls to plaintiff's telephone. The court does not reach the merits of… Read More

In Derby v. AOL, Inc., 2015 WL 5316403, at *4-6 (N.D.Cal., 2015), Judge Whyte dismissed a TCPA claim challenging AOL's AIM and the Plaintiff's receipt of three unsolicited text messages that plaintiff received through defendant's AOL Instant Messenger (“AIM”) service, and a confirmation text from AOL to plaintiff following plaintiff's request to block future messages from AIM.  Judge White found that a… Read More

In McKenna v. WhisperText, 2015 WL 5264750, at *1 (N.D.Cal., 2015), Judge Grewal dismissed Plaintiff's TCPA class action because no TCPA was used. The facts were as follows: Defendants WhisperText, LLC, and WhisperText, Inc. operate an anonymous sharing service called Whisper. The idea is to allow users to share their ideas, hopes and fears without attribution. Like many services accessed primarily… Read More

In Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More

In Rouse v. Delta Air Lines, Inc., 2015 WL 4636726 (D.Minn.,2015), Judge Magnuson held that a TCPA Text-Message Plaintiff survived a Motion to Dismiss on whether the Complaint adequately pleaded use of an ATDS.  The facts were as follows: In late 2014, Plaintiff Kevin Rouse received a text message on his personal cell phone from Defendant Delta Air Lines, asking… Read More

The Firm's Eric Troutman expounds on the FCC's recent TCPA Ruling, and the breadth of its definition of an ATDS:  TCPA Article on Smartphones as AutoDialers. 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

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

A copy of the FCC's Release can be found here:  FCC TCPA News Release.  A transcript of the proceedings and the panel's statements can be found here:   FCC TCPA Transcript 6.18.15 Read More

In Gillard v. Receivables Performance Mgmt., LLC, No. CIV.A. 14-02392, 2015 WL 3456751, at *6 (E.D. Pa. June 1, 2015), Judge Pappert largely denied both parties' claims for relief under the TCPA. RPM moves for summary judgment in its favor on the same issue. (Def.'s Mem. Supp. Mot. Summ. J. at 10, Doc. No. 45–1). It also moves for summary judgment… Read More

In Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3466213, at *3-4 (N.D. Cal. June 1, 2015) amended at Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3477658 (N.D. Cal. June 1, 2015), Judge Whyte dismissed Plaintiff's TCPA case on a Motion to Dismiss. This case arise arises out of three unsolicited text messages that plaintiff received through defendant's AOL Instant Messenger (“AIM”) service,… Read More

The FCC today announced its intention to issue its proposed declaratory ruling on the TCPA.  A copy of the announcement is here. Read More

In Wilcox v. Green Tree Servicing, LLC, 2015 WL 2092671 (M.D. Fla. 2015), Judge Bucklew denied a TCPA Plaintiff’s summary judgment motion on the basis that Plaintiff had not adequately proved that Defendant used an ATDS. Defendant argues that the evidence shows that its agents manually dialed Plaintiff’s cell phone for all of the calls at issue. In support of… Read More

In Modica v. Green Tree Servicing, LLC., 2015 WL 1943222 (N.D. Ill. 2015), Judge Zagel granted summary judgment to a mortgage company on a TCPA claim because no ATDS was used.  The facts were as follows: Defendant employed two methods to place outgoing calls to Plaintiffs from October 2011 to April 24, 2012:(1) Aspect Unified IP Version 6.6 Service Pack 2 (“Dialer”),… Read More

In Harnish v. Frankly Co., 2015 WL 1064442 (N.D.Cal. 2015), Judge Davila found that a text-message class action under the TCPA could proceed past the pleading stage. Plaintiff alleged that on May 15, 2014, he received an unsolicited text message from Defendan, where the “from” field of the text message was identified as short code “27367,” and the message read:… Read More

In Walker v. Transworld Systems, Inc., 2015 WL 631390 (M.D.Fla. 2015), Judge Moody denied summary judgment to a TCPA defendant because, he found, the defendant’s use of “Live-Vox” constituted use of an ATDS under the TCPA. TSI is correct that Walker cannot prevail on her TCPA claim if TSI did not use an ATDS to call Walker. The record reflects… Read More

In Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D.Cal. 2015), Judge Hamilton found that GroupMe's business model did not trigger or violate the TCPA because the software that sent the text was triggered by GroupMe's customers and, therefore, there was "human intervention". This putative class action arises under the Telephone Consumer Protection Act (“TCPA”), which prohibits the making of any call (including… Read More

In Smith v. Markone Financial, LLC, 2015 WL 419005 (M.D.Fla. 2015), Judge Corrigan granted partial summary judgment to a TCPA plaintiff on the basis that a LiveVox dialing system used by the defendant was an ATDS under the TCPA. As it is undisputed that MarkOne called Smith using a LiveVox system, the Court only needs to determine whether that system… Read More