Sometimes, bad facts don’t make bad law. In Gannon v. Network Telephone Services, Inc., 2013 WL 2450199 (C.D.Cal. 2013), Judge Klausner refused to certify a TCPA text-message class action brought a sex-line operator. The facts were as follows: Defendant NTS is engaged in the business of telephone entertainment, in particular pay-per-call “phone sex” and “SexText.” NTS operates approxi-mately 45,000 telephone… Read More
In Roberts v. PayPal, Inc., 2013 WL 2384242 (N.D.Cal. 2013), Judge Hamilton granted summary judgment to a TCPA defendant who was sued for sending a text message to a Plaintiff who had provided the cell phone number to the defendant as part of using the defendant’s services. What is interesting about this case is that the Court decided not to… Read More
In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case. Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More
In Robbins v. Coca-Cola-Company, 2013 WL 2252646 (S.D.Cal. 2013), Judge Gonzalez found that the Plaintiffs stated a TCPA claim against Coke for SMS text messages sent promoting Coke products. “Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs' TCPA claim.”… Read More
In Blair v. CBE Group Inc., 2013 WL 2029155 (S.D.Cal. 2013), Judge Anello rejected a debt collector’s home-run FRCP 12(b)(6) motion to dismiss a TCPA class action at the pleadings stage. First, Judge Anello found that debt collectors such as CBE Group might be subject to the TCPA, and Plaintiff’s Complaint had pleaded enough. Relying on extensive legislative history and… Read More
This one's got it all, TCPA fans. In Mais v. Gulf Coast Collection Bureau, Inc., --- F.Supp.2d ----, 2013 WL 1899616 (S.D.Fla. 2013), Judge Scola decided not to follow any of the FCC regulations on the TCPA that otherwise apparently would have barred Plaintiff’s TCPA claims. The facts were as follows: In 2009, Plaintiff Mark Mais went to the… Read More
In Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D.Cal. 2013), Judge Wu found that the Plaintiff consented to receive confirmatory text messages from the Los Angeles Lakers by providing his cellular telephone number to the Lakers in an attempt to get his text message on the Jumbo-tron. The facts were as follows: The First Amended Complaint (“FAC”) alleges that… Read More
Ed.: to my TCPA readers, this case has it all . . . In Jamison v. First Credit Services, Inc. --- F.R.D. ----, 2013 WL 1248306 (N.D.Ill. 2013), Judge Kendall denied a motion for class certification in TCPA case. Plaintiff was a convicted felon. He pled guilty in 2008 to access device fraud. Specifically, he was part of a scheme to steal credit… Read More
We previously reported on the Thrasher-Lyon v. CCS Commercial LLC case, and its interlocutory appeal to the Court of Appeals for the 7th Circuit. Appellants have filed their opening brief here. Read More
In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment. Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as… Read More
In Lee v. Stonebridge Life Ins. Co., --- F.Supp.2d ----, 2013 WL 542854 (N.D.Cal. 2013), Judge Seeborg certified a TCPA-text message class based on the following facts. In this putative class action, plaintiff alleges that defendants violated the Telephone Consumer Protection Act, 42 U.S.C. §§ 227 et seq. (“TCPA”), by sending unsolicited text messages to consumers' cell phones. Plaintiff seeks… Read More
In Moore v. CCB Credit Services, Inc., 2013 WL 211048 (E.D.Mo. 2013), Judge Sippel found no actionable FDCPA harassment, but held the matter over for trial on the issue of consent and charges for calls under the TCPA. The District Court found that the number of calls did not amount to actionable harassment: It is undisputed that CCB made 65… Read More
In Saunders v. NCO Financial Systems, Inc., here, Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could not be revoked. Read More
In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws. Judge Voorhees concluded that there was no pre-emption. The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More
In Edwards v. National Credit Adjusters, LLC, 2012 WL 5851288 (Nev. 2012), the Nevada Supreme Court found that a debtor’s port of his land-line to cell phone did not create liability under the TCPA for autodialed calls to the cell phone because the debtor’s providing the telephone number in his application for credit – even if the number was a… Read More
In Jordan v. ER Solutions, Inc., --- F.Supp.2d ----, 2012 WL 5245384 (S.D.Fla. 2012), Judge Dimitrouleas found no TCPA liability under the TCPA for auto-dialed calls to a debtor who had consented to be called at that number when she applied for credit, even though the debtor did not own the number. Jordan got into debt by shopping at Seventh… Read More
In Johnson v. Credit Protection Ass'n, L.P., 2012 WL 5875605 (S.D.Fla. 2012), Judge Marra found for a debt collector under the TCPA, finding that the debtor had given consent to be called and had not limited that consent in the debtor's original transaction with the creditor. The facts were as follows: Plaintiff Sherone C. Johnson (“Plaintiff”) provided his cellular phone number to… 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 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
In Conrad v. General Motors Acceptance Corporation, here, Judge Godbey denied Plaintiff's Motion for Class Certification in a TCPA cellular telephone case, holding that issues of consent presented individualized inquiries. Judge Godbey explained: Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both… Read More
