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

In Fields v. Mobile Messengers America, Inc., 2013 WL 6073426 (N.D.Cal. 2013), Judge Alsup denied certification of a TCPA class action due to individualized inquiries on the issue of consent. Plaintiffs are consumers who claim to be victims of a cell-phone scam known as “cramming.” This is the practice of “placing unauthorized, misleading, or deceptive charges on a consumer's telephone… Read More

We previously reported on Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Judge Sammartino held that the absence of consent is not a… Read More

In Mashiri v. Ocwen Loan Servicing, LLC, 2013 WL 5797584 (S.D.Cal. 2013), Judge Lorenz found a TCPA claim adequately pleaded.  First, Judge Lorenz rejected the Defendant’s argument that the TCPA does not apply to debt collectors placing calls to wireless telephone numbers by use of an autodialer: The TCPA contains separate provisions for calls made to residential telephone lines and… Read More

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

In Bresko v. M & T Bank Corp., 2013 WL 5328241 (M.D.Fla. 2013), Judge Moody rejected the argument that efforts to revoke consent under the TCPA is not evidence that the consumer gave express consent in the first place.  The Plaintiff alleged that M & T Bank Corporation (“M & T”) called her mobile cell phone to make collection calls… Read More

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

In Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (2013), the Court of Appeals for the Third Circuit held that the TCPA permits a consumer to revoke consent to be called by an autodialer on their cellphones. Dell's principal argument is that the TCPA's silence as to whether a consumer may revoke her prior express consent… Read More

In Castro v. Green Tree Servicing LLC, --- F.Supp.2d ----, 2013 WL 4105196 (S.D.N.Y. 2013), Judge Ramos found that including a GLB Privacy Notice with a collection letter was deceptive.  Judge Ramos also denied the defendant’s Motion for Summary Judgment on Plaintiff’s TCPA claim.  Judge Ramos found questions of fact that an auto-dailer was used and that trapping a consumer’s… Read More

In Smith v. Progressive Financial Services, Inc., 2013 WL 3995004 (D.Or. 2013), Judge McShane found that a student loan taken out to attend an aviation academy was still a ‘consumer’ debt under the FDCPA. Contrary to defendant's argument, “education” encompasses something broader than mere investment in pursuit of profit.   Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347… Read More

In Volpe v. Caribbean Cruise Line, Inc., 2013 WL 3724858 (N.D.Ill. 2013), Judge Guzman found that the Plaintiff stated a claim under the TCPA notwithstanding defendant's argument that plaintiff's complaint triggered the defense of consent. The TCPA prohibits any person from “mak[ing] any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number… Read More

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

In Clayton v. Aaron's Inc., 2013 WL 3148174 (E.D.Va. 2013), Judge Spencer addressed whether a consumer who received debt collection text messages stated a claim under the TCPA.  Judge Spencer held that the consumer could not. § 227(b)(1)(A)(iii) prohibits any person within the United States from making any call (or text message) to a cell phone number, other than for emergency purposes… Read More

In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling (http://www.calautofinance.com/?p=4112) for interlocutory appeal to the 11th Circuit Court of Appeals.  This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed (http://www.calautofinance.com/?p=4165) – at least… 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 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

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 Carlson v. Nevada Eye Care Professionals, 2013 WL 2319143 (D.Nev. 2013), Judge Jones denied a defendant’s Summary Judgment Motion brought on the basis that the Plaintiff had consented to receive the text messages sent by the Defendant. Plaintiff and class representative Mia Carlson, f.k.a. Mia Shaughnessy, received the following text massage on her cell phone on December 5, 2012: … 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 Meyer v. Receivables Performance Management, LLC, 2013 WL 1914392 (W.D.Wash. 2013), Judge Jones summarily disposed of a debt collector’s efforts to dismiss a TCPA class action at the pleadings stage. From February 2012 to April 2012, Ms. Meyer received many calls on her cellular phone from RPM. RPM is a debt collector. When Ms. Meyer did not answer, RPM… 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