In Fulton, D.D.S., v. Enclarity, Inc., No. 17-1380, 2018 WL 5726133 (6th Cir. Nov. 2, 2018), the Court of Appeals for the 6th Circuit concluded that a fax sent to the dentists' office could constitute an “advertisement” that subjected the fax to the TCPA. Fulton alleged that the fax was a pretext to obtain both “participation in Defendants’ proprietary database”… Read More
In Lee v. Branch Banking & Trust Company, Civ No. 18-21876-CIV-Scola, 2018 WL 5633995 (S.D. Fla. Oct. 31, 2018), Judge Scola held that the SCOTUS’ decision in Bristol-Meyers did not bar the exercise of jurisdiction over non-resident putative class members in a TCPA class action. Next, BB&T argues that the Supreme Court’s recent decision in Bristol-Myers bars the Court from… Read More
In Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l. Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it… Read More
In Epps v. Earth Fare, Inc., No. 17-55413, 2018 WL 5314055 (9th Cir. October 26, 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA Plaintiff did not properly revoke consent to be called. Epps alleged that although she revoked her previous consent to receive text messages from Earth Fare, Earth Fare continued… Read More
In Self-Forbes v. Advanced Call Center Technologies, LLC, Case No. 16-15804, 2018 WL 5414613 (9th Cir. October 29, 2018), the Court of Appeals for the Ninth Circuit in an unpublished decision reversed the District Court’s grant of summary judgment to a TCPA defendant on the basis that the Plaintiff testified that she orally revoked consent to be called. We have… Read More
In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International. Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to… Read More
In Blevins v. Premium Merchant Funding One, LLC., 2018 WL 5303973, at *2–3 (S.D.Ohio, 2018), Judge Smith allowed a DNC-TCPA case past the pleadings stage. Further, on the matter of telephone numbers used for both business and residential purposes, the FCC has “decline[d] to exempt from the do-not-call rules those calls made to ‘home-based businesses’ rather, we will review such… Read More
In Blaker v. Credit One Bank, 2018 WL 5307470, at *3–4 (S.D.Cal., 2018), Magistrate Judge Adler found remanded a removed action to a state court that had been arbitrated and Plaintiff attempted to confirm. The facts were as follows: Plaintiffs Richard and Samantha Blaker initiated this lawsuit by filing a complaint in San Diego County Superior Court on March 25,… Read More
In Keifer v. Hosopo Corp., No.: 3:18-cv-1353-CAB-(KSC), 2018 WL 5295011 (S.D. Cal. Oct. 25, 2018), the Court found that a TCPA Plaintiff adequately pleaded an ATDS after Marks. Defendant’s contention that Plaintiff has failed to establish that it, or any agent, made any of the alleged 14 calls is unavailing. [Doc. No. 14-1 at 17-21.] For purposes of the motion to… Read More
On October 3, the FCC issued a Request for Comment on the TCPA's definition of ATDS following the 9th Circuit's Marks decision. A copy of the FCC's Request is here. The deadline to file commentary is October 24, 2018. The FCC seemed concerned by Marks' expansive interpretation of the TCPA's definition(s). In other words, the [Marks] court interpreted the statutory language expansively so… Read More
In Tomeo v. CitiGroup, Inc., 2018 WL 4627386, at *9–12 (N.D.Ill., 2018), Judge Ellis declined to certify a wrong-number TCPA class. Here, Citi has put forth specific evidence establishing that a significant percentage of the putative class consented to receiving calls. Hansen intentionally avoided stating an opinion on the issue of consent in the Hansen Report, Doc. 121 Ex. 6… Read More
In Glasser v. Hilton Grand Vacations Company, LLC., 2018 WL 4565751, at *5–7 (M.D.Fla., 2018), Judge Whittemore granted summary judgment to a TCPA defendant on the basis that no ATDS was used. According to Sponsler, “human intervention in this case is the human intervention step to dial.” (Id. at 101:9-10, 102:11-12). He identified three components which demonstrate that Defendant’s system is… Read More
In Ramos v. Hopele of Fort Lauderdale, LLC, 2018 WL 4568428, at *1–2 (S.D.Fla., 2018), Judge Moreno adopted the Magistrate's recommendation and granted summary judgment to a TCPA defendant who sent text messages to an uploaded list of numbers. Defendant's Motion for Summary Judgment is GRANTED. The defining issue in the Report and Recommendation and Plaintiff's principal objection to the… Read More
In Fleming v. Associated Credit Services, Inc., 2018 WL 4562460 (D.N.J., 2018), Judge McNulty found that a LiveVox HCI predictive dialer was not an ATDS under the TCPA. While recognizing the disparate views in the case law, I am convinced by the reasoning in Pinkus and similar decisions. I hold that when the D.C. Circuit vacated the 2015 FCC Declaratory Ruling… Read More
In Lucas v. Total Security Vision, Inc., 2018 WL 4519896 (S.D.Ohio), 4 (S.D.Ohio, 2018), Judge Bowman agreed that “excessive fines” was not an appropriate affirmative defense in a TCPA case. Plaintiff seeks to strike Defendants’ constitutional arguments that TCPA damages are an excessive fine under the Eighth Amendment. (Doc. 32, ¶32). This Court previously agreed in another case filed by Plaintiff. See… Read More
The Court of Appeals for the Ninth Circuit issued its opinion in Marks v. Crunch San Diego on September 20, 2018. Marks v. Crunch San Diego, LLC, 2018 WL 4495553 (9th Cir. 2018). The court held that equipment needs only “store” numbers and automatically dial them to qualify as an ATDS. The court held: “the statutory definition of ATDS includes a… Read More
In Blanchard v. Fluent, LLC., 2018 WL 4373099, at *2–3 (N.D.Cal., 2018), Judge Chesney remanded a case to state court, referring to TCPA precedent. Where, as here, a plaintiff brings a claim under a statute prohibiting the making of false or misleading commercial speech, courts have found the plaintiff, to have standing, must allege an injury caused by such speech.… Read More
In Sharp v. Ally Financial, Inc., 2018 WL 4300018, at *18 (W.D.N.Y., 2018), Judge Wolford found that a TCPA claim survived the Plaintiff's death. Accordingly, the Court declines to follow the rationale and the conclusion set forth in Hannabury to the extent discussed above, and holds that a private claim brought pursuant to § 227(b)(3) and § 227(c)(5) of the… Read More
In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 4217065, at *5–6 (M.D.Fla., 2018), Judge Moody described the effect of ACA Int'l on what constitutes an ATDS. In sum, ACA Int’l vacated the FCC’s 2015 Order in two ways relevant here: it vacated the FCC’s interpretation of what it means for a device to have the capacity to function as… Read More
In Diaz-Lebel v. TD Bank USA, N.A., 2018 WL 4145912, at *3 (D.Minn., 2018), Magistrate Judge Thorson found that a request for wrong number data was disproportionate to the litigation, but agreed to throw the Plaintiffs a bone. The sheer burden and proportionality concerns prevent this Court from ordering that all documents responsive to this request be produced. Plaintiff’s alternative proposals… Read More
