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CEB Prac. Guide § 2B.32: Willfulness

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District Court (Cal.) Refuses to Strike TCPA Complaint’s Listing of a Host of Other Consumer Complaints and Sister-State Actions; Declines to Strike Class Allegations as “Fail-Safe” Class

by Scott J. Hyman |

In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales.  Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More

District Court (Mich.) Says TCPA Plaintiff Pleaded Enough Clicks-and-Pauses to Plead Use of ATDS; But, Failed to Plead Enough to Demonstrate Willfulness

by Scott J. Hyman |

In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More

District Court (Fla.) Says Neither Party Proved Entitlement to MSJ on the Issue of TCPA Trebling of Damages

by Scott J. Hyman |

In McBeth v. Credit Protection Ass'n, L.P, 2015 WL 4429324, at *3-4 (M.D.Fla.,2015), Judge Honeywell said that neither party wins on MSJ on the issue of willfulness under the TCPA. Both parties argue that they are entitled to summary judgment with regard to treble damages for “knowing” or “willful” violations of the TCPA. McBeth argues that “knowing” or “willful” should be… Read More

District Court (Pa.) Largely Denies Both Parties’ MSJs in TCPA Case

by Scott J. Hyman |

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

District Court (W.Va.) Holds that “Wrong Party” Holder of “Life-Line” Phone Can Bring TCPA Claim Even if He Should Not Have Been Entitled to Such a Phone

by Scott J. Hyman |

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

District Court (Tex.) Says TCPA Damages Would Not Be Increased Based on “Willfullness” Because of Law’s Uncertainty as to Whether Consent Could Be Revoked

by Scott J. Hyman |

In Whatley v. Creditwatch Services, Ltd., 2014 WL 1287174 (E.D.Tex. 2014), Judge Schell declined to increase Plaintiff’s TCPA damages based on willfulness due to uncertainty in the law at the time as to whether consent could be revoked. Plaintiffs ask the court to award him $24,000, which amounts to treble damages for each of Defendant's sixteen violations of the TCPA.… Read More

District Court (W.Va.) Orders Discovery of Other Claims in TCPA Class Action as Relevant to the Issue of Wilfullness

by Scott J. Hyman |

In In re Monitronics Intern., Inc., Telephone Consumer Protection Act Litigation, 2014 WL 316476 (N.D.W.Va. 2014), Judge Kaull ordered discovery of other claims against a TCPA defendant in a TCPA telemarketing claim: Mey alleges that Versatile Marketing Solutions (“VMS”) acting on behalf of Monitronics and UTC, telephoned her multiple times between November 16, 2009, and December 20, 2011, despite the… Read More

District Court (Ok.) Grants Partial Summary Judgment to Plaintiff on TCPA Claim; Finds “Good Faith” Is No Defense to Claim — But is Only Relevant to Trebling

by Scott J. Hyman |

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

District Court (NY) Finds No TCPA Consent for Debt Collector to Call Current Cell Phone when Debtor Gave Prior Cell Phone Number to Creditor

by Scott J. Hyman |

In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More

Judge Scola in USDC S.D.Fla. Declines to Follow FCC’s 1992 Order Again on “Express Consent” in TCPA Case

by Scott J. Hyman |

In Lusskin v. Seminole Comedy, Inc., 2013 WL 3147339 (S.D.Fla. 2013), Judge Scola -- who authored the Mais decision (http://www.calautofinance.com/?p=4199) -- declined (again) to follow the FCC's 1992 Order, stating that it deviated from the TCPA's express language.  Accordingly, Judge Mais held that merely providing one's cellular telephone number does not equate to express consent to receive text messages. The TCPA is clear that… Read More

District Court (Fla.) Refuses to Reconsider TCPA Class Certification, Allows Re-definition of the Issue to Preserve Certification

by Scott J. Hyman |

In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013), Judge Mola refused to reconsider his class certification of a TCPA class. Turning to a few of the matters raised at oral argument, Defendants complain that the TCPA class definition is problematic because it does not identify any parameters for determining when an individual is a “Florida… Read More