In Zyburo v. NCSPlus, Inc., --- F.Supp.3d ----, 2014 WL 4536932 (S.D.N.Y. 2014), Judge Rakoff granted class certification in a TCPA class action. This is a putative class action brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227 et seq., which prohibits certain kinds of telephone solicitations without the recipient's consent. Plaintiff alleges that the defendant repeatedly… Read More
In Hazel's Cup & Saucer, LLC v. Around The Globe Travel, Inc., --- N.E.3d ----, 2014 WL 4106870 (Mass.App.Ct. 2014), the Massachusetts Court of Appeal reversed a trial court's denial of class certification, when the trial court denied class cert because the potential massive exposure under the TCPA if the class was certified outweighed the harm caused. This case presents… Read More
In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database. Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent.… Read More
In Ryan v. Jersey Mike's Franchise Systems, 2014 WL 1292930 (S.D.Cal. 2014), Judge Benitez granted a defense Motion to Deny Class Certification based on a conflict between the class representative’s deposition testimony and a declaration submitted by the representative in opposition to the Motion. Movants state that Jersey Mike's caused a pro-motional text message to be sent to the cell… Read More
In Kristensen v. Credit Payment Services, 2014 WL 1256035 (D.Nev. 2014), Judge Gordon denied defendant’s Motion to Dismiss a TCPA class action, finding that vicarious liability might exist. The facts were as follows: The Complaint alleged that the website in the text message—www.lend5k.com—automatically redirected to websites owned and operated by CPS and/or its agents who promoted CPS's payday loan products.… Read More
In Buonomo v. Optimum Outcomes, Inc.--- F.R.D. ----, 2014 WL 1013841 (N.D.Ill. 2014), Judge St. Eve granted in part and denied in part a TCPA defendant's Motion to Strike class allegations in a wrong-party TCPA case. One of the central issues in TCPA “wrong party” cases is whether the called party, which the Seventh Circuit has defined as “the person subscribing… Read More
In Chapman v. First Index, Inc., 2014 WL 840565 (N.D.Ill. 2014), Judge Ellis denied class certification in a TCPA-fax case. Although Judge Ellis recognized the split of authority, and although the Plaintiff attempted to define the class to exclude those who had provided prior express consent, Judge Ellis still found the class unmanageable due to individualized inquiries. Courts are split… Read More
In Labou v. Cellco Partnership, 2014 WL 824225 (E.D.Cal. 2014), Judge England denied Plaintiff's request for pre-certification discovery, and granted a pre-emptive defense motion to de-certify a class action under facts reminiscent of Soppet: Plaintiff filed the present complaint on April 30, 2012. She alleges that Defendants began calling Plaintiff's cellular phone number with an automated telephone dialing system to… 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
In Stern v. DoCircle, Inc., 2014 WL 486262 (C.D.Cal. 2014), Judge Guilford certified a TCPA text message class. The facts were as follows: Defendant DoCircle is a business that offers an online service allowing its customers to send text messages. (Rhie Depo., Dkt. No. 42–2 Ex. 2, at 10–11.) Marc Sporn, a third party who conducts business under the name… Read More
In Smith v. Microsoft Corp., --- F.R.D. ----, 2014 WL 323683 (S.D.Cal. 2014), Judge Sammartino denied class certification in a TCPA text-message case arising from Microsoft’s sending unauthorized text messages promoting Microsoft's Xbox to cellular telephones in purported violation of the Telephone Consumer Protection Act. Judge Sammartino was neutral on whether the Plaintiff’s interest was paramount and, in doing so,… Read More
In Fields v. Mobile Messengers America, Inc., 2013 WL 6073426 (N.D.Cal. 2013), Judge Alsup denied certification of a TCPA class action due to individualized inquiries on the issue of consent. Plaintiffs are consumers who claim to be victims of a cell-phone scam known as “cramming.” This is the practice of “placing unauthorized, misleading, or deceptive charges on a consumer's telephone… Read More
We previously reported on Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden. Judge Sammartino held that the absence of consent is not a… Read More
In Knutson v. Schwan's Home Service, Inc., 2013 WL 4774763 (S.D.Cal. 2013), Judge Curiel certified a TCPA class action in what appears to be the first TCPA class certified within the 9th Circuit outside of the “single source” context. Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted… 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 Craftwood II, Inc. v. v. Tomy Intern., Inc., 2013 WL 3756485 (C.D.Cal. 2013), Judge Carter rejected the use of the FRCP 68 device made to the individual class-representative to moot a TCPA class action after Genesis. Defendant’s counsel sent Plaintiff a settlement offer. “In order to end this litigation now,” Tomy offered Plaintiff $1,500 for each faxed advertisement that… Read More
In Knutson v. Schwan's Home Service, Inc., 2013 WL 3746118 (S.D.Cal. 2013), Judge Curiel vacated and remanded for further consideration a Magistrate’ Judge’s order requiring a TCPA class-action plaintiff to produce an outbound dial list. Schwan's operates a grocery delivery service. In addition to delivering groceries to their primary customers, Schwan's also made deliveries on behalf of NutriSystem, Inc. to… Read More
In Keim v. ADF MidAtlantic, LLC, 2013 WL 3717737 (S.D.Fla. 2013), Judge Marra allowed a rule an FRCP 68 Offer to moot a Plaintiff's TCPA class action. Plaintiff seeks statutory damages at $500.00 per text message for negligent violations of the Act, statutory damages of up to $1,500.00 per text message for each willful violation of the Act, an injunction requiring Defendants… Read More
In Chen v. Allstate Ins. Co., 2013 WL 2558012 (N.D.Cal. 2013), Judge Hamilton found a Rule 68 offer insufficient to moot a TCPA plaintiff’s federal law suit, and found an ‘unintended recipient’ of calls to her cellular telephone pleaded sufficient facts to state a claim under the TCPA. The facts were as follows: Plaintiff Richard Chen (“Chen”) filed the original… Read More
In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling (http://www.calautofinance.com/?p=4112) for interlocutory appeal to the 11th Circuit Court of Appeals. This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed (http://www.calautofinance.com/?p=4165) – at least… Read More
