In Rector v. WFDS, here, Judge Fischer granted summary judgment on Plaintiff's TCPA, FDCPA, and Intrusion on Seclusion claims. Plaintiff, a third party who was listed as credit reference on customer's credit application, claimed that Wells Fargo made dialer calls to his cell phone. Wells Fargo made a handful of calls to Plaintiff to question the whereabouts of the customer… Read More
In Chyba v. First Financial Asset Management, Inc., 2014 WL 1744136 (S.D.Cal. 2014), Judge Benitez found that even if Plaintiff created a triable issue of fact as to whether she gave prior express consent to be called on her cellular telephone, a third-party debt collector had a good faith basis to believe that Plaintiff had provided consent to the creditor… Read More
On June 27, 2014, Judge Saylor of the U.S.D.C. in Massachusetts in Davis v. Diversified Consultants, Inc, here, concluded that the LiveVox technology was an ATDS under the FCC's rules, and granted summary judgment to the Plaintiff on his TCPA claim. Judge Saylor's decision echoes that of Judge Ungaro of the U.S.D.C. for the Southern District of Florida in Lardner v. Diversified… Read More
In Olney v. Job.com, Inc., 2014 WL 1747674 (E.D.Cal. 2014), Judge O’Neill found trial issues of fact and denied summary judgment to a TCPA defendant who the Resume–Now's resume posting service, a service that is offered only to subscribing members and to whom Plaintiff had provided his cellular telphone number. Plaintiff misinterprets Satterfield. “The FCC appears to have intended in… Read More
In Elkins v. Melco Health Solutions, Inc., here, Judge Adelman found no TCPA violations for calls to a consumer about her health care prescriptions and/or needs. The Court finds that Plaintiff’s TCPA claim is barred because she gave her express prior consent to be called at the number she provided when she gave that number at the time of enrollment as… Read More
In Andersen v. Harris & Harris, Ltd., 2014 WL 1600575 (E.D.Wis. 2014), Judge Stadtmeuller found that a TCPA defendant met its burden of proof of demonstrating that the Plaintiff provided express consent to be called on his cellular telephone, and rejected the Plaintiff’s self-serving ambiguous evidence to the contrary. As mentioned above, H & H cannot have violated the TCPA… Read More
In Lamont v. Furniture North, LLC, 2014 WL 1453750 (D.N.H. 2014), Judge McCafferty found that a Husband, whose wife had provided his cellular telephone number in connection with a purchase transaction, still stated a claim under the TCPA because the husband had not given prior express consent to be called on his cellular telephone number. Except where otherwise indicated, the… Read More
In Sharp v. Allied Interstate Inc., 2014 WL 1224656 (W.D.N.Y. 2014), Judge Skretny denied summary judgment to a defendant collecting on a cellular telephone bill due to a failure to prove consent. This Court has previously ruled that a consumer has consented to calls even if the cell phone number was not provided at the time the account was opened.… Read More
In Steinhoff v. Star Tribune Media Co., LLC, 2014 WL 1207804 (D.Minn. 2014), Judge Nelson found that Plaintiff had consented to receive calls on her cellular telephone. The parties dispute whether the third element of a TCPA claim is met.FN2 Defendant argues that Plaintiff gave her prior express consent to receive autodialed calls to her cellular number because she disclosed… Read More
On Thursday the FCC entered rulings on the petitions filed by GroupMe, Inc.: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-33A1.pdf and the Cargo Airline Association: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-32A1.pdf The FCC's ruling on the petition of Group Me, Inc. for an expedited declaratory ruling and clarification on the issue of whether it could rely on its members to provide consent for "called parties" that would receive text messages as… Read More
In Charvat v. Allstate Corporation, --- F.Supp.2d ----, 2014 WL 866377 (N.D.Ill. 2014), Judge Bucklo held that consent obtained during an autodialed call, such as requesting that a consumer ‘press 1’ to receive further information, does not constitute the prior consent necessary to deliver the message in the first place. Judge Bucklo also refused to stay the matter under the… Read More
In Chapman v. First Index, Inc., 2014 WL 840565 (N.D.Ill. 2014), Judge Ellis denied class certification in a TCPA-fax case. Although Judge Ellis recognized the split of authority, and although the Plaintiff attempted to define the class to exclude those who had provided prior express consent, Judge Ellis still found the class unmanageable due to individualized inquiries. Courts are split… Read More
In Moriarity v. Nationstar Mortg., LLC, 2014 WL 801021 (E.D.Cal. 2014), in a case filed by an in pro per plaintiff, Judge Ishii “inferred” prior express consent by virtue of the existing debtor creditor relationship, and dismissed the Plaintiff’s TCPA claim. It is the general rule that, “where a valid assignment of a mortgage has been consummated with proper consideration,… Read More
Congratulations to the Firm's client, car2go, who obtained Judgment on the Pleadings in the District Court for the Western District of Washington on its affirmative defense of "prior express consent" in a class action filed under the TCPA. Eric Troutman, who practices in the Firm’s Orange County Office but who also is a member of the Washington State Bar, represented car2go in the… Read More
In Kolinek v. Walgreen Co., 2014 WL 518174 (N.D.Ill. 2014), Judge Kennelly granted a drug store's motion to dismiss a TCPA claim. The Plaintiff claimed that he received autodialed calls on his cellular telephone reminding him of his prescription, to which he did not consent. Judge Kennelly disagreed, and granted the pharmacy's motion to dismiss. “[P]rior express consent” under the TCPA is… Read More
In Stern v. DoCircle, Inc., 2014 WL 486262 (C.D.Cal. 2014), Judge Guilford certified a TCPA text message class. The facts were as follows: Defendant DoCircle is a business that offers an online service allowing its customers to send text messages. (Rhie Depo., Dkt. No. 42–2 Ex. 2, at 10–11.) Marc Sporn, a third party who conducts business under the name… Read More
In Baird v. Sabre Inc., 2014 WL 320205 (C.D.Cal. 2014), Judge Wilson distinguished Satterfield and held that the Plaintiff, who provided her cellular telephone number to book a flight on Hawaiian Airlines, consented to receive texte messages from Sabre, who contracts with Hawaiian Airlines to provide traveler notification services to passengers. The text message invited Baird to reply “yes” to… Read More
In Smith v. Microsoft Corp., --- F.R.D. ----, 2014 WL 323683 (S.D.Cal. 2014), Judge Sammartino denied class certification in a TCPA text-message case arising from Microsoft’s sending unauthorized text messages promoting Microsoft's Xbox to cellular telephones in purported violation of the Telephone Consumer Protection Act. Judge Sammartino was neutral on whether the Plaintiff’s interest was paramount and, in doing so,… Read More
In Wills v. Optimum Outcomes, Inc., 2014 WL 220707 (D.Utah 2014), Judge Warner found that a TCPA Plaintiff failed to state a claim against a medical debt collector because the Plaintiff had given his cellular telephone number in a letter to the Creditor. At some point in the past, Plaintiffs received services from InterMountain Healthcare, which in turn hired Defendant to collect… Read More
In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. 2013), Judge Honeywell found that a blood bank did not violate the TCPA by sending text messages to a prior blood donor who had provided his cellular telephone number in connection with giving blood. Murphy was paid for donating his blood through a blood plasma center in Orlando, DCI… Read More
