ACA’s petition was filed on January 31, but was accepted for filing by the FCC on February 11. ACA’s petition is broad-based, asks the FCC to accomplish the following objectives: • Confirm that not all predictive dialers are categorically automatic telephone dialing systems. •Confirm that “capacity” under the TCPA means present ability. •Clarify that prior express consent attaches to the… Read More
Yes, you read it right. In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2014 WL 494862 (W.D.Wash. 2014), Judge Lasnik held that a TCPA did not use an ATDS within the meaning of the TCPA. The facts were as follows: Defendant Orange Cab Company, Inc. (Orange Cab) utilizes TaxiMagic, a Ridecharge, Inc. product, as a means of remaining… Read More
In Hunt v. 21st Mortg. Corp., 2014 WL 426275 (N.D.Ala. 2014), Judge Acker struck Plaintiff's TCPA ATDS Expert Robert Biggerstaff as being incompetent on the subject of whether Defendant used an ATDS. However, Judge Acker found a factual questions nevertheless on whether a ATDS was used. In its Opinion and Order of September 17, 2013 (Doc. 31), this court joined the Ninth… Read More
In Sherman v. Yahoo!, Inc., 2014 WL 369384 (S.D.Cal. 2014), Judge Curiel denied Yahoo’s Motion for Summary Judgment that sought to validate it’s “Yahoo! Messenger” system under the TCPA. Defendant describes Yahoo! Messenger as an instant messaging client and associated protocol provided by Yahoo! free of charge that can be downloaded and used by anyone registered as a user with… Read More
In Couser v. Pre-paid Legal Services, Inc., 2014 WL 197717 (S.D.Cal. 2014), Judge Burns found that a TCPA Class Action Plaintiff might state a claim against an alleged agent hired by the Defendant to promote its business, but suggested that the case might be proper for a stay under the Primary Jurisdiction doctrine. This is a Telephone Communications Protection Act… Read More
In Bates v. Dollar Loan Center, LLC, 2014 WL 60472 (D.Nev. 2014), Judge Dawson denied a TCPA defendant’s Motion for Summary Judgment on the issue of whether an ATDS was used. The facts were as follows: This is a class action complaint. Defendants are “all involved in the business of high-interest, short-term loans (i.e. ‘payday loans').” (# 1; 2:24–25). Fur-ther,… Read More
In Daniels v. Comunity Lending, Inc., 2014 WL 51275 (S.D.Cal. 2014), Judge Hayes found Plaintiff’s FDCPA and TCPA claims not adequately pleaded. The FDCPA applies to debt collectors, but not to creditors. See Mansour v. Cal–Western Reconveyance Corp., 618 F.Supp.2d 1178, 1182 (D.Ariz.2009). Under the FDCPA, a “debt collector” is “any person who uses any instrumentality of inter-state commerce or… Read More
In Fried v. Sensia Salon, Inc., 2013 WL 6195483 (S.D.Tex. 2013), Judge Atlas found that whether an autodialer was used to send text messages under the TCPA was a question best addressed by the FCC, not by the Courts. Sensia asserts that the “question of whether this system is an unlawful autodialer is primed for resolution by the FCC.” FN27… 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
We reported previously on the pending GroupMe petition, as well as others, pending before the FCC regarding whether the TCPA's definition of autodialer requires a 'present' capacity to store numbers. (http://www.calautofinance.com/?p=3853) A District Court in Alabama recently held that the TCPA so requires: In Hunt v. 21st Mortg. Corp., 2013 WL 5230061 (N.D.Ala. 2013), Judge Acker was deciding a discovery dispute between the… Read More
In Iniguez v. The CBE Group, --- F.Supp.2d ----, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls. The lawsuit was based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed… Read More
In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring. The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… 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 Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP… 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 Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2013 WL 1788479 (W.D.Wash. 2013), Judge Lasnik found that a TCPA Plaintiff, on his second time around, pleaded enough facts to demonstrate use of an ATDS with sufficiency to state a claim under the TCPA in a text message case. Contrary to plaintiff's arguments about the pleading standard for alleging… 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 Nelson v. Santander Consumer USA, Inc., --- F.Supp.2d ----, 2013 WL 1141009 (W.D.Wis. 2013), Judge Snyder found that ‘preview dialing’ triggered the TCPA. The facts were as follows: Beginning in March or April 2010 defendant Santander Consumer USA, Inc., an automobile finance company, began making calls to 608–512–xxxx in an attempt to collect the debt from those loans. At… Read More
