In Blow v. Bijora, Inc., 2017 WL 1731494, at *6 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that the district court erred in granted summary judgment on the basis that no ATDS was used. Citing cases that predate the FCC's most recent rulings, Akira argues that Opt It's software must be able to dial random… Read More
In Brickman v. Facebook, Inc.,Case No. 16-cv-00751-TEH, 2017 WL 1508719 (N.D. Cal. April 27, 2017), Judge Henderson granted interlocutory appeal of his January 27, 2017 ruling denying Facebook's motion to dismiss that found that Facebook's "Happy Birthday" texts were dialed using an ATDS under the TCPA. For the foregoing reasons, Facebook’s motion to certify the Court’s Order for interlocutory appeal… Read More
In Ung v. Universal Acceptance Corporation, 2017 WL 1288378, at *1 (D.Minn., 2017), Judge Kyle granted summary judgment to an automobile finance company who manually dialed calls, "refusing to go down the rabbit hole". The Court explained: But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and… Read More
In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer. Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More
In Smith v. Stellar Recovery, Inc. 2017 WL 955128, at *3 (E.D.Mich., 2017), Judge Murphy granted summary judgment to a TCPA defendant based on the fact that its dialer system required human intervention. II. Predictive Dialer Objection. In her next objection, Smith argues that Stark admitted that the automated call distributor (ACD) system had ‘predictive dialer functionality‘ which makes the… Read More
In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff's First Amended Complaint attempting to plead use of an ATDS. Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone… Read More
In Dominguez v. Yahoo!, Inc., 2017 WL 390267, at *20–22 (E.D.Pa., 2017), Judge Baylor granted summary judgment to Yahoo!. Having discussed the expert reports proffered by the Plaintiff, the Court will now consider whether, if the expert reports were admissible, the reports considered together with the experts' testimony at their depositions could establish a factual issue that the Yahoo system… Read More
In Brickman v. Facebook, Inc., 2017 WL 386238, at *3–4 (N.D.Cal., 2017), Judge Henderson found that Facebook's "Happy Birthday" texts survived a motion to dismiss. Judge Henderson also found that the TCPA survived a constitutional challenge as violating free speech. Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016),… Read More
In Frisch v. AllianceOne Receivables Management, LLC, 2017 WL 25471 (E.D. Wis. 2017), Judge Pepper granted summary judgment to a debt collection agency who manually dialed calls, even though the caller "had" an ATDS. The court agrees that there are evidentiary problems with the evidence the plaintiff has presented. Even if the documents were admissible, however, the plaintiff still would… Read More
In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More
In Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *12 (N.D.Ill. 2016), Judge Kocoras found that an automobile finance company's calls to a TCPA class action plaintiff through its Aspect dialer used an ATDS under the TCPA. Santander's alternative ground for summary judgment asserts, not the consent of the called parties, but the equipment it used to call them. Santander… Read More
In Pozo v. Stellar Recovery Collection Agency, Inc., here, Judge Porcelli granted summary judgment to a debt collector under the TCPA who argued that no ATDS was used. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls. See Jenkins v.… Read More
In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More
In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More
In Jenkins v. MGage, LLC, 2016 WL 4263937, at *5–7 (N.D.Ga. 2016), the District Court found that the human intervention required to trigger the sending of text messages disqualified Defendants' text-message system from constituting an ATDS. Defendants argue they are entitled to summary judgment because the text messages were sent as the result of human intervention, and thus were not… Read More
In Cour v. Life360, Inc., 2016 WL 4039279, at *4 (N.D.Cal., 2016), Judge Henderson dismissed a TCPA claim arising from a group-texting app. First, Judge Henderson found that the claim survived a Spokeo challenge. Here, however, Cour has not simply alleged a procedural violation; instead, he relies on an allegation that he was harmed because Life360 invaded his privacy. FAC ¶ 53.… Read More
In Carlisle v. Green Tree Servicing, LLC, 2016 WL 4011238, at *1 (N.D.Ga., 2016), Judge Thrash granted summary judgment to a TCPA creditor who manually dialed calls to the called party. The Plaintiff brings a claim under the TCPA. “The TCPA prohibits the use of an [Automatic Telephone Dialing System (“ATDS”) ] to make any call (other than a call… Read More
In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More
In Ellis v. Phillips and Cohen Associates, Ltd., 2016 WL 3566981, at *3-5 (N.D.Cal., 2016), Judge Davila found a triable issue of material fact as to whether a debt incurred by Plaintiff's corporation, for which she denied responsibility, was a "commercial" debt under the FDCPA. As this court previously observed when addressing Defendant's motion to dismiss, a “consumer debt” qualifying… Read More
In Izsak v. Draftkings, Inc., 2016 WL 3227299, at *3-5 (N.D.Ill., 2016), Judge Wood found that a TCPA Plaintiff pleaded enough to get past the pleadings stage. This Court agrees with the view that where a fact—here, use of an ATDS—is itself an element of the claim, “it is not sufficient to recite that fact verbatim without other supporting details.”… Read More
