In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention. A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the… Read More
In Johnson v. Yahoo!, Inc., 2014 WL 7005102 (N.D.Ill. 2014), Judge Shah denied Yahoo!'s motion for summary judgment on Plaintiff's TCPA case, on the basis that triable issues of fact remained as to whether Yahoo! used an ATDS. Plaintiffs are cell phone subscribers who each received at least two text messages from defendant Yahoo!. The first: personalized text messages originally sent… Read More
In Morse v. Allied Interstate, LLC, --- F.Supp.3d ----, 2014 WL 7004036 (M.D.Pa. 2014), Judge Nealon granted Plaintiffs' Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS. Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number… Read More
In Coniglio v. Bank of America, 2014 WL 6882294 (M.D.Fla. 2014), Judge Kovachevhich refused to set aside a TCPA default judgment because the defendant's allegation that it did not use an ATDS was without merit and because Plaintiff had alleged that any consent given to be autodialed on his cellular telephone was revoked. 2. Bank of America alleges it did not use… Read More
In Ybarra v. Dish Network LLC, 2014 WL 6085292 (N.D.Tex. 2014), Judge O’Connor granted summary judgment to a TCPA Plaintiff without requiring the Plaintiff to demonstrate the use of an ATDS, so long as the Plaintiff could show that a pre-recorded voice was used. The TCPA prohibits calls using an ATDS or a prerecorded voice. 47 U.S.C. § 227(b)(1)(A). DISH… Read More
In Marks v. Crunch San Diego, LLC, --- F.Supp.3d ----, 2014 WL 5422976 (S.D.Cal. 2014), Judge Bashant found that defendants' text message system was not an ATDS within the meaning of the TCPA. Defendant Crunch San Diego, LLC (“Crunch”) operates gyms in San Diego, California, as well as in several other states. Compl. ¶ 3, ECF 1. Plaintiff Jordan Marks entered into… Read More
In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… Read More
In Nieto v. Allied Interstate, Inc., 2014 WL 4980376 (D.Md. 2014), Judge Blake granted summary judgment to a TCPA defendant on the basis that no ATDS was used to dial the call. No genuine dispute exists as to whether Allied used an ATDS in calling Nieto. In support of its assertion that it did not use an ATDS, Allied presents an affidavit… Read More
In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine. Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants… Read More
In Bates v. Dollar Loan Center, LLC, 2014 WL 3516260 (D.Nev. 2014), Judge Dawson found that the Defendant’s argument that manual calls were exempt from the TCPA bordered on Rule 11 sanctions. The Court found that the TCPA’s definition of ATDS focuses on “capacity”, not “use”, and all that defendant need have done is dump the numbers into the dialer… Read More
In Sterk v. Path, Inc., --- F.Supp.2d ----, 2014 WL 2443785 (N.D.Ill. 2014), Judge Der-Yeghiayan found, after discovery was permitted on the subject, that a text message service used an ATDS within the meaning of the TCPA. The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to… Read More
In Rector v. WFDS, here, Judge Fischer granted summary judgment on Plaintiff's TCPA, FDCPA, and Intrusion on Seclusion claims. Plaintiff, a third party who was listed as credit reference on customer's credit application, claimed that Wells Fargo made dialer calls to his cell phone. Wells Fargo made a handful of calls to Plaintiff to question the whereabouts of the customer… Read More
In Dominguez v. Yahoo! Inc., --- F.Supp.2d ----, 2014 WL 1096051 (E.D.Pa. 2014), Judge Baylson rejected the FCC’s interpretation of what an ATDS is, and found that an ATDS must have the present capacity to randomly generate numbers, which Yahoo!’s dialer did not. However, these acknowledgements do not resolve the crux of the issue: whether the system had the capacity… Read More
In Legg v. Voice Media Group, Inc.--- F.Supp.2d ----, 2014 WL 2004383 (S.D.Fla. 2014), Judge Cohn denied summary judgment to both sides on whether an ATDS was used in a TCPA text message case. The facts were as follows. This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. (“VMG”) allegedly sent to Plaintiff Christopher… Read More
On June 27, 2014, Judge Saylor of the U.S.D.C. in Massachusetts in Davis v. Diversified Consultants, Inc, here, concluded that the LiveVox technology was an ATDS under the FCC's rules, and granted summary judgment to the Plaintiff on his TCPA claim. Judge Saylor's decision echoes that of Judge Ungaro of the U.S.D.C. for the Southern District of Florida in Lardner v. Diversified… Read More
In Legg v. Voice Media Group, Inc., 2014 WL 1767097 (S.D.Fla. 2014), Judge Cohn struck a TCPA Plaintiff’s expert’s testimony regarding whether Defendant’s dialer was an ATDS under the TCPA. In the Supplemental Snyder Declaration and the Second Supplemental Snyder Declaration, Snyder opines that the systems VMG used to send its text messages satisfy the TCPA's definition of an automatic… Read More
In Hunt v. 21st Mortg. Corp., 2014 WL 1664288 (N.D.Ala. 2014), Judge Acker allowed Plaintiff’s TCPA expert Robert Biggerstaff to offer opinion testimony that the Defendant did not manually dial the calls to Plaintiff’s cellular telephone. Judge Acker’s decision was flavored by the fact that the Defendant installed a new dialer system within days after Plaintiff’s counsel’s wife filed the… Read More
In Sojka v. DirectBuy, Inc., 2014 WL 1304234 (N.D.Ill. 2014), Judge Feinerman found a TCPA class action adequately pleaded. The facts were as follows: In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227… Read More
In Baker v. Caribbean Cruise Line, Inc., 2014 WL 880634 (D.Ariz. 2014), Judge Rosenblatt held that the Plaintiff adequately pleaded the use of an ATDS under the TCPA. Defendant asserts that Plaintiff's complaint fails to support the allegation that the calls were automated or used an artificial or prerecorded voice, and omits facts about the time, length, and content of the calls.… Read More
In Gragg v. Orange Cab Co., Inc., 2014 WL 801305 (W.D.Wash. 2014), Judge Lasnik denied Plaintiff's motion to reconsider his previous ruling that Orange Cab did not use a dialer to send text messages for passsengers who ordered cabs in Seattle. Defendants moved for summary judgment based on the undisputed characteristics of its proprietary dispatch notification system. Dkt. # 69. Defendants expressly… Read More
