In Sawyer v. KRS Biotechnology, 2018 WL 2425780 (S.D. Ohio 2018), Magistrate Judge Bowman denied class certification in a junk-fax TCPA class action. Although the defendant’s V.P. Of sales was unfamiliar with the TCPA before the litigation and the defendant had no formal records documenting individualized consent to send the faxes, Judge Bowman found that individual questions of consent predominated.… Read More
In Gamble v. New England Auto Finance, Inc., 2018 WL 2446607 (11th Cir. 2018), the Court of Appeals for the Eleventh Circuit found that text messages sent by automobile finance company after its customer had paid her RISC in full were not subject to the RISC’s arbitration clause and class-action waiver. NEAF also argues that the Arbitration Provision is broad enough… Read More
In Walintukan v. SBE Entertainment Group., LLC., 2018 WL 2357763, at *3 (N.D.Cal., 2018), Judge Tigar denied a TCPA defendant's summary judgment motion. Defendants argue that “the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint.”… Read More
In Swaney v. Regions Bank, Case No. 2:12-cv-00544-JHE, 2018 WL 2316452 (N.D. Ala. May 22, 2018), Judge Proctor held that ACA Int’l only invalidated the FCC’s 2015 Order, and that a calling system that qualified as an ATDS under FCC’s 2003 Order still constituted an ATDS under the TCPA. In ACA International, the D.C. Circuit invalidated certain portions of the 2015… Read More
In Maddox v. CBE Group, Inc., Case No. 1:17-CV-1909-SCJ, 2018 WL 2327037 (N.D. Ga. May 22, 2018), Judge Jones followed the ACA Int’l decision with respect to the issue of what constitutes an ATDS under the TCPA. Ordinarily, statutory interpretation “begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd., LLC v. United States,… Read More
In Anderson v. Credit One Bank, N.A., 2018 WL 2287329, at *2–3 (S.D.Cal., 2018), Judge Anello struck a TCPA Plaintiff's "errata" sheet following Plaintiff's deposition, reconsidered the denial of Defendant's Petition to Compel Arbitration, and granted the Petition to Compel Arbitration. Here, upon due consideration, the Court finds that Plaintiff’s errata sheet “runs afoul of Rule 30(e)’s...requirements.” Tourgeman, 2010 WL… Read More
In O'Shea v. American Solar Solution, Inc., 2018 WL 2298207, at *2 (S.D.Cal., 2018), the District Court denied the Plaintiff's summary judgment because, potentially, a jury could disbelieve the Plaintiff's expert. Plaintiff presents two arguments to the effect that it has carried its burden of demonstrating Defendant made 897,304 calls. First, Plaintiff argues that Defendant admitted as much by way… Read More
In Jara v. GC Services Ltd., Partnership, et. al. 2018 WL 2276635 (C.D.Cal.), 3 (C.D.Cal., 2018), Judge Wright found a triable issue of fact as to whether a debtor’s revocation of TCPA consent on one account was sufficient to revoke consent on all accounts held by the debt collector. Mrs. Jara was the sole authorized user on her JC Penny,… Read More
Companies and practitioners throughout the Ninth Circuit are following the now-fully briefed appeal in Marks v. Crunch San Diego, LLC, No. 14-56834, with interest. In this appeal, the Ninth Circuit is considering what constitutes an Automatic Telephone Dialing System (“ATDS”) under the TCPA and could imminently issue a decision. The appeal is from an order granting a TCPA defendant summary… Read More
Following the D.C. Circuit Court’s ruling in ACA International v. FCC , 885 F.3d 687 (D.C. Cir. Mar. 16, 2018), two US District Courts reached different conclusions regarding whether they were still bound by the FCC’s pre-2015 orders on what constitutes an ATDS under the TCPA. In John Herrick v. GoDaddy.com LLC, 2:16-cv-00254-DJH (D. Ariz. May 14, 2018), the District… Read More
In Threadford v. Board of Trustees of University of Alabama, 2018 WL 2197554, at *2–3 (N.D.Ala., 2018), Judge Proctor dismissed a TCPA claim against the University of Alabama. There are two exceptions to Eleventh Amendment immunity: First, Congress can abrogate eleventh amendment immunity without the state’s consent when it acts pursuant to the enforcement provisions of section 5 of the… Read More
In Menachem Raitport and Crown Kosher Meat Market, Inc. v. Harbour Capital Corporation, 2018 WL 2186469, at *4–6 (D.N.H., 2018), Judge McAuliffe found that he was bound by the DC Circuit's ruling on the FCC's Solicited Fax Rule, not the FCC's Rule itself. Raitport argues that “this Court lacks the jurisdiction to follow the D.C. Circuit’s decision [in Bais Yaakov]… Read More
On May 3, 2018, a coalition of industry groups filed a petition for a declaratory ruling with the FCC, following the DC Circuit's decision in ACA Int'l. Yesterday, the FCC asked for comment. A copy of the Petition can be found here. Interested parties may file comments by June 13, or reply to comments by June 28. Read More
In Weed v. SunTrust Bank, 2018 WL 2100590 (N.D.Ga.), 3 (N.D.Ga., 2018), Judge Duffy declined to rule on a caller’s Reyes defense to an oral revocation claim under the TCPA because the defense is an affirmative defense that the Court declined to rule on at the pleadings stage. SunTrust argues that Weed consented in the Sale Contract to the calls… Read More
In Zucker v. HSBC Bank, USA, et. al., 2018 WL 2048880, at *8–9 (E.D.N.Y., 2018), Judge Hurley hoisted Reyes on its own petard, finding that consent to call given in a credit application was not, at the pleadings stage, broad enough consent for the inevitable debt collection calls to be made by an ATDS. Plaintiff has alleged that PHH (1) called… Read More
In Barton v. Credit One Financial, 2018 WL 2012876, at *3–4 (N.D.Ohio, 2018), Judge Nugent granted summary judgment against a TCPA plaintiff who claimed that he orally revoked consent to be called. Mr. Barton also argues that he “revoked any consent he may have given” to Credit One. (ECF #47, p. 1). The facts illustrate that while Mr. Barton may… Read More
In Cahill v. GC Services Ltd., 2018 WL 1791910, at *3 (S.D.Cal., 2018), the District Court rejected a TCPA Defendant's attempt to oppose a discovery motion on the grounds that the Plaintiff could not properly represent the class because Plaintiff was not dialed by an ATDS. The primary theme throughout Defendant’s motion is that Plaintiff is an atypical member of… Read More
In Tilley v. Ally Financial, Inc., 2018 WL 1535413, at *1–2 (E.D.Mich., 2018), Judge Leitman declined to hear a collection claim filed in response to a federal TCPA claim. Ally’s state-law breach of contract counterclaim and Tilley’s TCPA claim do not derive from a common nucleus of operative facts. Tilley’s TCPA claim arises out of the (alleged) facts that Ally… Read More
In Marshall v. CBE Group, Inc., 2018 WL 1567852, at *4–8 (D.Nev., 2018), Judge Navarro followed the ACA Int'l decision and, in the absence of interpretative guidelines by the FCC, applied the TCPA's "plain language". In light of this ruling, the Court will not stray from the statute's language which “mandates that the focus be on whether the equipment has… Read More
In Fober v. Management and Technology Consultants, LLC, 2018 WL 1526365, at *3 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held that a patient consented to receive autodialed calls. Plaintiff argues, though, that her consent extended only to calls concerning the quality of Health Net's services and not to calls concerning the quality of Dr. Schwartz'… Read More
