In King v. Time Warner Cable, Inc., 2018 WL 3188716 (2d Cir. 2018), the Court of Appeals for the Second Circuit offered its interpretation of what constitutes an “ATDS” after ACA Int’l. As noted above, in concluding that Time Warner’s calls to King violated the TCPA, the district court relied on the FCC’s 2015 Order, which broadly construed the term… Read More
In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int'l. Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC's rulings with regard to definitions of an ATDS were vacated and, thus,… Read More
In Dominguez v. Yahoo!, Inc., -- F.3d ---- (3rd Cir. 2018), the Court of Appeals for the Third Circuit found that Yahoo! did not use an ATDS to send text messages, as the Court of Appeals interpreted the ACA Int’l decision. The decision in ACA International has narrowed the scope of this appeal.16 In light of the D.C. Circuit’s holding, we… Read More
In McMillion v. Rash Curtis & Associates, Case No. 16-cv-03396-YGR, 2018 WL 3023449 (N.D. Cal. Jun3 18, 2018), Judge Gonzales-Rogers declined to revisit her ruling on summary judgment (previously reported on here https://www.severson.com/consumer-finance/district-court-cal-says-defendant-used-atdss-class-period-addresses-whether-calls-many-fdcpa-rosenthal-act-says-medical-debt-consumer-credit-transaction-becau/ or to stay the case pending the outcome of the 9th Circuit’s Marks ruling. First, the District Court declined to reconsider her ruling on summary judgment. Rash Curtis argues that because… Read More
In Benedetti v. Charter Communications, Inc., 2018 WL 2970998, at *2 (S.D.Ind., 2018), Judge Miller denied summary judgment to a TCPA defendant who established that an ATDS was not used because the calls may have been pre-recorded calls. Charter is correct that Ms. Benedetti doesn’t have evidence to show that any of the calls was made by using an automatic… Read More
In Swaney v. Regions Bank, Case No. 2:12-cv-00544-JHE, 2018 WL 2316452 (N.D. Ala. May 22, 2018), Judge Proctor held that ACA Int’l only invalidated the FCC’s 2015 Order, and that a calling system that qualified as an ATDS under FCC’s 2003 Order still constituted an ATDS under the TCPA. In ACA International, the D.C. Circuit invalidated certain portions of the 2015… Read More
In Maddox v. CBE Group, Inc., Case No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018), Judge Jones followed the ACA Int’l decision with respect to the issue of what constitutes an ATDS under the TCPA. Ordinarily, statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States,… Read More
In O'Shea v. American Solar Solution, Inc., 2018 WL 2298207, at *2 (S.D.Cal., 2018), the District Court denied the Plaintiff's summary judgment because, potentially, a jury could disbelieve the Plaintiff's expert. Plaintiff presents two arguments to the effect that it has carried its burden of demonstrating Defendant made 897,304 calls. First, Plaintiff argues that Defendant admitted as much by way… Read More
Companies and practitioners throughout the Ninth Circuit are following the now-fully briefed appeal in Marks v. Crunch San Diego, LLC, No. 14-56834, with interest. In this appeal, the Ninth Circuit is considering what constitutes an Automatic Telephone Dialing System (“ATDS”) under the TCPA and could imminently issue a decision. The appeal is from an order granting a TCPA defendant summary… Read More
Following the D.C. Circuit Court’s ruling in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. Mar. 16, 2018), two US District Courts reached different conclusions regarding whether they were still bound by the FCC’s pre-2015 orders on what constitutes an ATDS under the TCPA. In John Herrick v. GoDaddy.com LLC, 2:16-cv-00254-DJH (D. Ariz. May 14, 2018), the District… Read More
In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More
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In Zondlo v. Allied Interstate, LLC., 2018 WL 827590, at *6 (M.D.Pa., 2018), Judge Munley estopped a debt collector from re-litigating whether the calling system it used was an ATDS. Allied does not dispute that it was fully represented during Morse, and, as previously mentioned, has even agreed to use the deposition testimony from Morse in the instant case, as… Read More
In McMillion v. Rash Curtis & Associates, 2018 WL 692105, at *4 (N.D.Cal., 2018), Judge Rodgers found that a TCPA Defendant used an ATDS during the class period. The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and… Read More
In Ferrer v. Bayview Loan Servicing, LLC., 2018 WL 582584, at *6 (S.D.Fla., 2018), Judge Scola granted summary judgment on a TCPA claim where the calls were manually dialed, despite the fact that the caller owned and used a dialer elsewhere. In his declaration, Gutierrez asserts that the forty-four remaining (44) calls that Bayview placed to Ferrer's cell phone during the… Read More
In Mohamed v. American Motor Company, LLC., 2017 WL 4310757, at *3–4 (S.D.Fla., 2017), Judge Torres struck the Plaintiff's Expert Jeff Hansen as being unreliable, even though he was qualified to testify. OLO next argues that Mr. Hansen's testimony should be excluded because it is unreliable, as Mr. Hansen did not test, review, or inspect the actual platform or system before… Read More
In Arora v. Transworld Systems, Inc., 2017 WL 3620742, at *1 (N.D.Ill., 2017), Judge Kokoras held that a point-and-click calling system was not an ATDS due to the human intervention involved. The facts were as follows: In contrast, TSI claims that from August 25, 2014 through November 17, 2014, it placed a total of 13 calls to Arora. When calling… Read More
In Wick v. Twilio, Inc., 2017 WL 2964855, at *4 (W.D.Wash., 2017), Judge Laznik found that Twilio might have used an ATDS, if it was Twilio who placed the call. Contrary to Twilio's argument, the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content. Rather, the totality of the facts and… Read More
In Schlusselberg v. Receivables Performance Management, LLC., 2017 WL 2812884, at *3–4 (D.N.J., 2017), Judge Wolfson granted summary judgment to a debt collector by means of LiveVox's HCI. Here, Defendant argues that LiveVox's HCI system is not by definition an ATDS under the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the system does not possess the automated… Read More
In Snyder v. Ocwen Loan Servicing, LLC, 2017 WL 2798387, at *6 (N.D.Ill., 2017), Judge Kennelly certified a TCPA skip-trace class, but only for injunctive relief purposes. The Court reserved the issue whether a liability class was fatally fail-safe. Ocwen also argues that part of plaintiffs' proposed class definition creates an impermissible ‘fail-safe‘ class and therefore that the Court should deny… Read More
