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

We previously reported on the Taylor case’s holding that a TCPA plaintiff need not plead that they incurred a cost as a result of the TCPA-offending call. (http://www.calautofinance.com/?p=5147). This week, however, in Taylor v. Universal Auto Group I, Inc., 2014 WL 6654270 (W.D.Wash. 2014), Judge Strombom found that Plaintiff had met all of the usual requirements of FRCP 23 to… Read More

In Schweitzer v. Northland Group Inc., 2014 WL 5782991 (S.D.Fla. 2014), Judge Cohn granted summary judgment to a debt collector on a debtor’s TCPA claim. Citibank asserts that Schweitzer's TCPA claim against it fails because Schweitzer consented to be called in connection with the debt upon which Defendants tried to collect. DE 40–1 at 9–12. Schweitzer bases his TCPA claim… Read More

In Miller v. NRA Group, LLC, 2014 WL 5343529 (W.D.Mich. 2014), Judge Carmody granted summary judgment to a debt collector on a Plaintiff’s TCPA claim due to the consent the Plaintiff had provided to the Creditor. Pursuant to the Telephone Consumer Protection Act (TCPA), it is unlawful “to make any call (other than a call made for emergency purposes or… Read More

In Nigro v. Mercantile Adjustment Bureau, the Court of Appeals for the Second Circuit reversed the District Court's grant of summary judgment on a TCPA claim.  We previously reported on the FCC’s submission to the Second Circuit here (http://www.calautofinance.com/?p=5172) and on the District Court’s Opinion here (http://www.calautofinance.com/?p=3940)   The facts were as follows: Nigro asserts that, while attempting to collect his… Read More

In Mais v. Gulf Coast Collection Bureau, 2014 WL 4802457 (11th Cir. 2014), the Court of Appeals for the 11th Circuit reversed the District Court's decision holding that it was not bound by the FCC's determination of "prior express consent" under the TCPA.   The 11th Circuit found that "The district court exceeded its jurisdiction by declaring the 2008 FCC Ruling to… Read More

In Stemple v. QC Holdings, Inc., 2014 U.S. Dist. LEXIS 125313 (S.D.Cal. 2014), Judge Bashant certified a TCPA Class comprised of "All persons whose 10-digit cellular telephone numbers with a California area code were listed by an account holder in the Employment and/or Contacts fields of a California customer loan application produced to [Defendant], which were called by [Defendant] using an [ATDS]… Read More

In Hill v. Homeward Residential, Inc., 2014 WL 4105580 (S.D.Ohio 2014), Judge Frost found that a Plaintiff’s claim that he did not remember calling Defendant, combined with Defendant’s lack of evidence of how it obtained Plaintiff’s number, was sufficient to overcome Defendant’s summary judgment on the basis that Plaintiff had given “prior express consent” to be called on his cellular… Read More

In Ranwick v. Texas Gila, LLC, 2014 WL 3891663 (D.Minn. 2014), Judge Kyle refused to follow the Mais decision out of Florida. Ranwick seeks to avoid the application of these Rulings by arguing they are erroneous and not binding on the Court. To the contrary, the Hobbs Act reserves to the courts of appeals the “exclusive jurisdiction to determine the… Read More

We previously reported on District Court's decision in Nigro v. Mercantile Adjustment Bureau here (http://www.calautofinance.com/?p=3940).  The Plaintiff appealed the District Court's granting summary judgment to the TCPA Defendant, and the Second Circuit Court of Appeals asked for comment from the FCC.  The FCC's response is reflected here. Read More

In Sartori v. Susan C. Little & Associates, P.A.,--- Fed.Appx. ----, 2014 WL 3302588 (10th Cir. 2014), the Tenth Circuit Court of Appeals – in an unpublished case involving a pro per Plaintiff -- held that a TCPA defendant need not show either that consent was obtained in writing or that the consumer had to consent to be autodialed. Sartori… Read More

In Kolinek v. Walgreen Co., 2014 WL 3056813 (N.D.Ill. 2014), Judge Kennelly granted Plaintiff’s Motion to Reconsider the Court’s previous dismissal of Plaintiff’s TCPA claim.  We previously reported on this case here:  http://www.calautofinance.com/?p=4653 . Walgreens moved to dismiss. It argued that Kolinek's complaint established that he had given “prior express consent” for the call within the meaning of the TCPA, and… Read More

In Penn v. NRA Group, LLC, 2014 WL 2986787 (D.Md. 2014), Judge Bredar granted summary judgment to a debt collector on a Plaintiff’s TCPA claim, stating that the customer’s providing his cellular telephone number to his doctor was the same as providing it to the doctor’s collector once the Plaintiff defaulted on the debt. The undisputed facts show that Penn's… Read More

In Taylor v. Universal Auto Group I, Inc., 2014 WL 2987395 (W.D.Wash. 2014), Judge Strombom rejected the argument that the TCPA requires the Plaintiff to have incurred a cost for the call, but agreed that Plaintiff’s providing his cellular telephone number to a predecessor business constituted consent to be called by the successor business. Tacoma Dodge Chrysler Jeep (Tacoma Dodge)… Read More

In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database. Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent.… Read More

In Buchholz v. Valarity, LLC, 2014 WL 2882504 (E.D.Mo. 2014), Judge Adelman denied summary judgment to the parties in a TCPA/FDCPA telephonic harassment case. The District Court found that Plaintiff’s allegation that he did not know whether he provided his cellular telephone number to the Defendant was sufficient to defeat summary judgment. Defendant first argues that no genuine issue of… Read More

In Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D.Cal. 2014), Judge Anello granted summary judgment to a TCPA defendant, finding that Plaintiff had consented to be called on her cellular telephone and had not revoked consent. On September 24, 2012, Plaintiff and her minor child, S.H., went to Sharp Grossmont Hospital to receive treatment for possible food poisoning. Upon admission,… Read More

In Gray v. Morgan Drexen, Inc., 2014 WL 2573227 (M.D.Fla. 2014), Judge Steele denied Summary Judgment to a TCPA defend based on a triable issue of fact as to whether the Plaintiff had orally revoked consent to be auto-dialed on her cellular telephone.  The facts were as follows: This case concerns alleged violations of the Telephone Consumer Protection Act (TCPA),… Read More

In Breslow v. Wells Fargo, here, the 11th Circuit followed the 7th Circuit's Soppett decision to find that "called party" under the TCPA is the subscriber to the cellular telephone.  "At bottom, the FCC recognized that debt collectors are in a better position to determine whether a party’s consent is still valid. That is, a person who is assigned a… Read More

In Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. 2014) here, Judge Burns granted summary judgment to the Defendant on Plaintiff’s TCPA and UCL claims. For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he… Read More

In Cherkaoui v. Santander Consumer USA, Inc., here, the District Court granted Santander’s Motion for Summary Judgment on Plaintiff’s TCPA claim.  The District Court found that the Plaintiff consented to be called on his cellular telephone by providing his cellular telephone number in his credit application for the purchase of a vehicle. Plaintiff offered self-serving testimony that he had revoked… Read More