In Ginwright v. Exeter Finance Corp., No. CV TDC-16-0565, 2017 WL 5716756 (D. Md. Nov. 28, 2017, the District Court rejected applying Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), which held that contractually bargained for consent under the Telephone Consumer Protection Act (“TCPA”) cannot be revoked. The court in Ginwright went on, however, to deny… Read More
In Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 2017 WL 4339788, at *8–9 (N.D.Ill., 2017), Judge Lee rejected the defendant's argument that mini-trials on the issue of consent meant that a class action was not the superior means of adjudicating a TCPA blast-fax class action. Judge Lee found that the defendant did not make a prima facie showing… 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 Eldridge v. Cabela's Inc., 2017 WL 4364205, at *9–10 (W.D.Ky., 2017), Judge Hale struck the Plaintiff's "stop" class, which Judge Hale re-characterized as a "revocation" class. Cabela's maintains that what Eldridge passes as “Stop” classes are really “Revocation” classes. In other words, the “Stop” classes are comprised of persons who had a prior relationship with Cabela's but subsequently revoked their… Read More
In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call. The violations in this case involved the use of automated telephone equipment… Read More
In Lanteri v. Credit Protection Assocation, LP, 2017 WL 3621299, at *4 (S.D.Ind., 2017), Judge Lawrence refused to certify a TCPA "stop-texting" revocation of consent class action. The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int'l v. FCC, No. 15-1211 (D.C.C.… Read More
Stating the obvious, Judge Eagles made up procedures on how to administer a post-judgment TCPA class: "Few contested class actions of this type have reached this stage, so there is little guidance for the Court." In Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324 (M.D. N.C. July 27, 2017), Judge Eagles decided not to enter a final judgment in the Krakauer matter following… Read More
In Sandusky Wellness Center, LLC. v. ASD Speciality Healthcare, Inc. d/b/a/ Besse Medical AmerisourceBergen Specialty Group., Inc., 2017 WL 2953039, at *8–11 (C.A.6 (Ohio), 2017), the Court of Appeals affirmed denial of class certification in a TCPA class action. To be sure, courts have been inconsistent in how they have accounted for difficulties in identifying class members, especially within the… Read More
In St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., 2017 WL 2861878 (E.D. Mo. 2017), Judge Perry found ascertainability problems in certifying a TCPA blast-fax class. As discussed in my prior Memorandum and Order of February 7, 2017, the Eighth Circuit addressed a class action similar to this one in Sandusky, which also involved violations of the… Read More
In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff's fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or… Read More
In Owens v. Starion Energy, Inc., 2017 WL 2838075, at *8–9 (D.Conn., 2017), Judge Bolden refused to strike an attorneys' fee prayer from a TCPA class action. In Bell v. Survey Sampling International, LLC, a TCPA case, this Court rejected a similar motion to strike the plaintiff's reference to attorney's fees. Id. The Court in Bell stated as follows: "[The… 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
In Caldera v. American Medical Collection Agency, 2017 WL 2812898, at *5 (C.D.Cal., 2017), Judge Marshall certified a TCPA skip-trace class. Plaintiff contends that prior express consent is not an individualized issue in this case, because the proposed Class is comprised only of individuals who were skip traced, or for whom Defendant did not have a valid phone number on… Read More
In Mbazomo v. ETourandTravel, Inc., 2017 WL 2346981, at *3 (E.D.Cal., 2017), Judge Bastian compelled production of class-wide names and telephone numbers of potential classmembers. Defendant objects to the disclosure of names and telephone numbers of potential class members on privacy grounds. Plaintiff further points out that the parties have signed a protective order, while Defendant argues that that protective… Read More
In Doherty v. Comenity Capital Bank & Comenity Bank, Case No.: 16cv1321-H-BGS, 2017 WL 1885677 (S.D. Cal. 2017), Magistrate Judge Skomal allowed pre-certification discovery – including out-bound dial lists, but denied discovery of skip-traced and trapped numbers where a file-by-file review would be required. The Court ordered production of out-bound dial lists, despite difficulties in production by Plaintiff and overbreadth… Read More
In Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., et. al. 2017 WL 1806583, at *1–2 (N.D.Cal., 2017), Judge Rodgers certified a TCPA class consisting of potentially 500,000 putative classmembers. Plaintiffs Abante Rooter and Plumbing, Inc., Mark Hankins, and Philip K. Charvat bring this punitive class action against defendants Alarm.com, Inc. and Alarm.com Holdings, Inc. (collectively “Alarm.com”) alleging four counts;… Read More
In Meridith v. United Collection Bureau, Inc., 2017 WL 1355696, at *2 (N.D.Ohio, 2017), Judge Gaughan compelled production of class data, and ordered Defendant to write a program to do a program search or make its database available to Plaintiff's expert so that he could write the program. The information that Plaintiff seeks is relevant to establishing the size and… Read More
In Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *6 (N.D.Ill., 2017), Judge Dow certified a TCPA class, but modified the plaintiff's class definition. Plaintiff responds that the express written consent language provides an “objective criteria” and is an easy metric for identifying proper class members. [121, at 5–6.] Plaintiff also notes that some courts have certified classes that include… Read More
In Davis v. AT&T Corp., 2017 WL 1155350, at *3–4 (S.D.Cal., 2017), the District Court denied class certification in a TCPA case. The Court that Plaintiff's efforts to change the class definition during the certification proceedings was not permitted. This proposed class is not simply a narrower version of that proposed in the Complaints. It is an entirely different class. … Read More
In Leyse v. Lifetime Entertainment Services, Inc., 2017 WL 659894, at *2 (C.A.2 (N.Y.), 2017), the Court of Appeals affirmed the District Court's denial of a 'say-so' class administration class. Leyse argues that the district court abused its discretion in denying, on ascertainability grounds, his motion to certify a class composed of “all persons to whose residential telephone lines [Lifetime] or… Read More
