In Rodriguez v. Premier Bankcard, LLC, Case No. 3:16CV2541, 2018 WL 4184742 (N.D. Ohio. August 31, 2018), Judge Carr framed 3 questions on summary judgment. First, Premier claims that because Hodge is the subscriber to the 70 number–that is, the consumer assigned to the number, and the individual billed for the call–he “was entitled to grant prior express consent for… Read More
In Heard v. Nationstar Mortgage, LLC, 2018 WL 4028116 (N.D. Ala. August 23, 2018), Judge Haikala found that a mortgage company’s dialer was an ATDS under the TCPA. Nationstar argues that its system is not an automatic dialer because it does not “store” caller information. That information, Nationstar argues, is located on a separate “host system.” (Doc. 51, p. 6). But… Read More
In Few v. Receivables Performance Management, 2018 WL 3772863, at *2–3 (N.D.Ala., 2018), Judge Owen Bowdre granted summary judgment to a debt collector based on Reyes. In this case, Ms. Few contends that, although she may have initially provided DISH— and, by extension, Receivables, which acted as DISH’s agent for the purpose of debt collection—with consent to call the 0268… Read More
In Harris v. Navient Solutions, LLC (f/k/a Sallie Mae), 2018 WL 3748155, at *2–3 (D.Conn. 2018), Judge Chatigny granted summary judgment to a TCPA defendant under Reyes. The Second Circuit has held that “the TCPA does not permit a party who agrees to be contacted as part of a bargained-for exchange to unilaterally revoke that consent.” See Reyes v. Lincoln… Read More
In Abanta Rooter and Plumbing, Inc., v. Alarm.com, Inc., 2018 WL 3707283, at *6–7 (N.D.Cal., 2018), Judge Gonzalez-Rogers denied all parties' motions for summary judgment as to what constituted an ATDS. The record indicates that Nationwide, Alliance’s purported agent, used the Ytel Dialer to place calls to the cell phones of members of the Cell Phone Class. (Terrell Decl., Ex.… Read More
In Gary v. TrueBlue, Inc., 2018 WL 3647046, at *6–8 (E.D.Mich., 2018), Judge Drain denied a TCPA Plaintiff's Motion for Summary Judgment on the basis that he had failed to prove that the text messages that he received were sent by means of an ATDS. Plaintiff argues that WorkAlert is an ATDS because WorkAlert can both (1) dial numbers from… Read More
In Morgan v. U.S. XPRESS, Inc., CHRISTOPHER MORGAN, 2018 WL 3580775, at *2–3 (W.D.Va., 2018), Judge Moon found that a TCPA Plaintiff had to distinguish between cell phone lines and land-lines. To start, Plaintiff's characterization of the cell phone as a “residential, cellular telephone line” is not determinative of this question. These are not factual allegations, but legal terms drawn… Read More
In Pinkus v. Sirius XM Radio, Inc., 2018 WL 3586186, at *7–9 (N.D.Ill., 2018), Judge Feinerman found that an ATDS must have the capacity to generate numbers randomly or sequentially and then to dial them, even if that capacity is not deployed for practical reasons. [T]he court must first assess ACA International’s scope. For the reasons stated below, ACA International… Read More
This technology has been around for years and has been the subject of legal advice, an FCC petition, and, now, a judicial opinion. Genevieve Walser-Jolly's Bulletin, here, discusses the recent Saunders case and direct mail-drop technology. Read More
In Parchman v. SLM Corporation, 2018 WL 3479228, at *6–10 (6th Cir. 2018), the Court of Appeals held that the TCPA is a remedial, not penal, statute and, therefore, survives the death of the Plaintiff. The Court of Appeals held, however, that the survivability question was different than whether the substituted Plaintiff was a proper class representative. The district court… Read More
In Lord v. Kisling, Nestico & Redick, LLC, 2018 WL 3391941, at *3 (N.D.Ohio, 2018), Judge Nugent found that a TCPA Plaintiff did not plead sufficient facts demonstrating that an ATDS was used under the standard set forth by the D.C. Circuit's decision in ACA International. For the telephone system KNR allegedly uses to constitute a violation of the TCPA,… Read More
In Reyes v. BCA Financial Services, Inc., 2018 WL 3145807 (S.D.Fla. 2018), the District Court certified a TCPA class action. On that question, the Court agrees with Reyes that she has presented an administratively feasible method of identifying class members. Although “B” flags or “WN” notations may not incontrovertibly establish that BCA dialed a wrong number, and thus would not conclusively… Read More
In King v. Time Warner Cable, Inc., 2018 WL 3188716 (2d Cir. 2018), the Court of Appeals for the Second Circuit offered its interpretation of what constitutes an “ATDS” after ACA Int’l. As noted above, in concluding that Time Warner’s calls to King violated the TCPA, the district court relied on the FCC’s 2015 Order, which broadly construed the term… Read More
In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int'l. Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC's rulings with regard to definitions of an ATDS were vacated and, thus,… Read More
In Karpilovsky v. All Web Leads, Inc., Case No. 17-C-1307, 2018 WL 3108884 (N.D. Ill. 2018), Judge Leinenweber certified a TCPA class. The Plaintiffs, however, retained an expert, Young, who testified that the AWL website was not materially changed during the class period and, for that reason, all members of the proposed class experienced the same information-submission and click-through procedure when… Read More
In Dominguez v. Yahoo!, Inc., -- F.3d ---- (3rd Cir. 2018), the Court of Appeals for the Third Circuit found that Yahoo! did not use an ATDS to send text messages, as the Court of Appeals interpreted the ACA Int’l decision. The decision in ACA International has narrowed the scope of this appeal.16 In light of the D.C. Circuit’s holding, we… Read More
In McMillion v. Rash Curtis & Associates, Case No. 16-cv-03396-YGR, 2018 WL 3023449 (N.D. Cal. Jun3 18, 2018), Judge Gonzales-Rogers declined to revisit her ruling on summary judgment (previously reported on here https://www.severson.com/consumer-finance/district-court-cal-says-defendant-used-atdss-class-period-addresses-whether-calls-many-fdcpa-rosenthal-act-says-medical-debt-consumer-credit-transaction-becau/ or to stay the case pending the outcome of the 9th Circuit’s Marks ruling. First, the District Court declined to reconsider her ruling on summary judgment. Rash Curtis argues that because… Read More
In Chacon v. Comcast Cable Communications Mgmt., LLC, 2018 WL 3046868, at *3 (N.D.Ill., 2018), Judge Guzman found that a TCPA claim fell outside the scope of an arbitration clause. The critical issue here is whether the second element identified in A.D. for compelled arbitration is satisfied: is the current dispute within the scope of the Subscriber Agreement’s arbitration provision?… Read More
In Benedetti v. Charter Communications, Inc., 2018 WL 2970998, at *2 (S.D.Ind., 2018), Judge Miller denied summary judgment to a TCPA defendant who established that an ATDS was not used because the calls may have been pre-recorded calls. Charter is correct that Ms. Benedetti doesn’t have evidence to show that any of the calls was made by using an automatic… Read More
In Lavigne v. First Community Bancshares, Inc., 2018 WL 2694457, at *7–8 (D.N.M., 2018), Judge Johnson certified a TCPA 'wrong-number' class. Plaintiff proposes that the class includes all individuals, according to Defendants records, who (1) called in to Defendants and were coded as “Bad/Wrong Number”, and were (2) subsequently called again by Defendants, and were coded as “Bad/Wrong Number.” Plaintiff proposes… Read More
