In Ikuseghan v. MultiCare Health System, 2015 WL 4600818, (W.D.Wash.,2015), Judge Settle found that the TCPA affords Article III standing to litigants, and certified a TCPA class. As to standing, Judge Settle found: MultiCare first argues that Ikuseghan lacks Article III standing to bring this suit. . . . In addition to economic injury, Ikuseghan alleges that MultiCare violated her statutory rights… Read More
Two articles on the TCPA authored by Severson attorneys were published today in the Consumer Finance Law Quarterly Report as part of the Conference on Consumer Finance's TCPA Symposium. The titles and citations for the articles are Staying TCPA Cases under the Primary Jurisdiction Doctrine, 68 Con. Fin. L. Q. Rep. 312 (2015) and Certification of Class Actions under the Telephone Consumer… Read More
In Panacci v. A1 Solar Power, Inc., 2015 WL 3750112, at *3 (N.D.Cal., 2015), Magistrate Judge Spero refused to strike TCPA class action allegations at the pleadings stage under Defendant's argument that Plaintiff had pleaded an impermissible "fail-safe" class. Defendants claim that Plaintiff's class definitions create fail-safe classes. . . .Plaintiff argues that its class definitions are not fail-safe because (1)… Read More
In Balschmiter v. TD Auto Finance LLC, 2015 WL 2451853E.D. Wis. 2015), Judge Stadtmueller denied Plaintiff’s request to use a classmember list provided under a protective order to give pre-trial notice to putative classmembers after the Court (and 7th Circuit) already had denied class certification. The Court will not expend its resources, limited as they are, elaborating on the defendant’s… Read More
In Taylor v. Universal Auto Grp. I, Inc., 2015 WL 2406071, at *4-5 (S.D. Ohio 2015), Judge Black affirmed a Magistrate's order compelling disclosure, pre-certification, of TCPA class members' names and addresses. OneCommand's primary argument is that the requested information is not relevant because the underlying action is in the pre-certification stage and that Plaintiff could only use this information to… Read More
We previously reported on the Gomez v. Campbell-Ewald matter (http://www.calautofinance.com/?p=5343), wherein the 9th Circuit found that a consumer's failure to accept advertiser's offer of judgment did not render action moot. Today, the SCOTUS granted cert. Campbell-Ewald Company v. Gomez, 2015 WL 246885-, -- S.Ct. ---, 83 USLW 3637 (2015). The Petition for Cert. offered 3 potential issues: 1.Whether a case… Read More
In Bayat v. Bank of the West, 2015 WL 1744342 (N.D. Cal. 2015), Judge Chen granted final approval to a TCPA class action settlement. The settlement class consisted of “All persons within the United States to whom, on or after November 2, 2008 through [July 22, 2014], a non-emergency telephone call was attempted by Bank of the West, or any… Read More
In Mogadam v. Fast Eviction Service, 2015 WL 1534450 (C.D. Cal. 2015), Judge Selna found use of an ATDS and a class action under the TCPA adequately pleaded. No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature… Read More
In Booth v. Appstack, Inc., 2015 WL 1466247 (W.D. Wash. 2015), Judge Robart re-defined a TCPA-telemarking class definition to avoid fail-safe problems. In its ascertainability analysis, the District Court redifined the class definition to deal with the fail-safe problem by eliminating the requirement of proof of non-consent by each classmember. Defendants’ final argument is that the class is not ascertainable… Read More
In Haghayeghi v. Guess?, Inc., 2015 WL 1345302 (S.D.Cal. 2015), Judge Houston refused to strike a TCPA class as an impermissible “fail-safe” class at the pleadings stage. Defendant argues Plaintiff's class definition must be stricken because it is an improper fail-safe class. Defendant maintains the purported class definition seeks to include only those people who received an unauthorized text message,… Read More
In Abdeljalil v. General Elec. Capital Corp., --- F.R.D. ----, 2015 WL 1346850 (S.D.Cal. 2015), Judge Houston certified a TCPA class action. Plaintiff moved for an order certifying the following class: All persons within the United States who had or have a number assigned to a cellular telephone service, who received at least two calls using an automatic telephone dialing… Read More
In In re Capital One Telephone Consumer Protection Act Litigation, --- F.Supp.3d ----, 2015 WL 605203 (N.D.Ill. 2015), Judge Holderman approved a TCPA-class settlement, but reduced Plaintiffs’ counsel’s fee request by approximately 30%. The Settlement Agreement requires Defendants to establish a non-reversionary settlement fund of $75,455,099. (Settlement Agreement § 2.42.) After subtracting notice and administration costs ($5,093,000), Class Counsel's requested… Read More
In Zarichny v. Complete Payment Recovery Services, Inc., --- F.Supp.3d ----, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible "fail-safe" class. Because plaintiff's class definitions create impermissible fail-safe classes, we need not consider defendants' second ground for striking her class allegations—that plaintiff is not an adequate class representative because… Read More
In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage. The facts were as follows: Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection… Read More
In Warnick v. DISH Network LLC, 2014 WL 6680407 (D.Colo. 2014), Judge Daniel made permanent what he previously made only temporary: that Plaintiff could not plead a recursive “fail-safe” TCPA class consisting of recipients of auto-dialed calls to their cellphones who had not provided prior express consent. Plaintiff argues, however, that he has addressed concerns about the TCPA Tracker class… Read More
In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More
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
Birchmeier, et al. v. Caribbean Cruise Line, Inc., Case No. 12 C 4069 (N.D. Ill. 2014), here, Judge Kennelly certified two nationwide classes of individuals who received robocalls offering a free cruise trip for participation in a political survey. The plaintiffs alleged that these robocalls violated the TCPA. Between August 2011 and August 2012, millions of calls were made, and… Read More
In Bates v. Dollar Loan Center, LLC, 2014 WL 5469221 (D.Nev. 2014), Judge Dawson scheduled an evidentiary hearing on the question of whether a TCPA class action could be certified for a class consisting of calls placed to borrowers’ references listed by the borrower in the loan application. Defendants argue that the class is overbroad because liability requires both a… 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
