In Makaron v. Enagic USA, Inc., 2018 WL 1311400, at *2 (C.D.Cal., 2018), Judge Pregerson certified a TCPA class against a telemarketer, finding that class-certification was not the time to determine whether an ATDS was used and that administrative feasibility is not a prerequisite to class certification. As an initial matter, the court observes that Defendant devotes a substantial portion of… Read More
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In Romero v. Department Stores National Bank, 2018 WL 1079728, at *1 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA plaintiff had Spokeo standing. The district court erred in concluding that Romero lacked standing under Article III to bring a TCPA claim. The district court did not have the benefit of Van… Read More
In Carlton & Harris Chiropractic, Inc. v. PDR Network, LLC, 2018 WL 1021225, at *2–4 (C.A.4 (W.Va.), 2018), the Court of Appeals for the 4th Circuit held that the Hobbs Act prevented the District Court from side-stepping the FCC's Rules. The question presented is whether and when a fax that offers a free good or service constitutes an advertisement under… Read More
In Ace American Insurance Company v. Dish Network, LLC, 2018 WL 988404, at *4–7 (C.A.10 (Colo.), 2018), the Court of Appeals for the Tenth Circuit held that the TCPA"s statutory damages were uninsurable penalties, so DISH Network was not owed either a duty to defend or to indemnify DISH Network in litigation filed by the federal government and various states… Read More
In Barnes v. Conn Appliances, Inc., 2018 WL 907418, at *3 (S.D.Miss., 2018), Judge Wingate agreed with a TCPA defendant's argument that a non-party to a contract can assent to its terms, including a TCPA-consent clause, but a jury would have to decide whether she did. This court now turns to an examination of the law. The TCPA occupies a… Read More
In Della Vecchia v. Ally Financial, 2018 WL 907045, at *1–2 (M.D.Fla., 2018), the District Court declined supplemental jurisdiction over a counter-claim filed by an automobile finance company against a TCPA Plaintiff. In fact, the typical TCPA action presents a handful of discrete questions (for example, whether the plaintiff consented to a call and whether plaintiff revoked consent), and Ally identifies… Read More
In Johnson v. Yahoo!, Inc., 2018 WL 835339, at *1–4 (N.D.Ill., 2018), Judge Shah decertified a TCPA class after the defendant obtained information from a third party provider and compared it to its own records, suggesting that the means by which membership in the class would be determined would be unmanageable. The production of records from Sprint after the close… Read More
In Zondlo v. Allied Interstate, LLC., 2018 WL 827590, at *6 (M.D.Pa., 2018), Judge Munley estopped a debt collector from re-litigating whether the calling system it used was an ATDS. Allied does not dispute that it was fully represented during Morse, and, as previously mentioned, has even agreed to use the deposition testimony from Morse in the instant case, as… Read More
In Weller v. AT&T Corp., 2018 WL 748607, at *2–3 (E.D.N.Y., 2018), Judge Block struck a TCPA class action because the plaintiff was an inadequate class representative. Dr. Wexler concedes, as she must, that she would have had an interest in a potential fee award to her husband, had he been appointed class counsel. She argues that his withdrawal “mooted” the… Read More
In McMillion v. Rash Curtis & Associates, 2018 WL 692105, at *4 (N.D.Cal., 2018), Judge Rodgers found that a TCPA Defendant used an ATDS during the class period. The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and… Read More
In Knapp v. Sage Payment Solutions, Inc., 2018 WL 659016, at *7 (N.D.Cal., 2018), Judge Chesney employed a lengthy analysis too long to repeat here to find in a blast-fax case that, because plaintiff could demonstrate no agency facts on which to pin liability to the alleged principal, the Court lacked personal jurisdiction over the alleged principal/defendant. For the reasons set forth… Read More
In Lemieux v. Lender Processing Center, 2018 WL 637945, at *2–3 (S.D.Cal., 2018), the District Court dismissed a third-party counter-claim for indemnity on the basis that the TCPA afforded no right to indemnity or contribution. Here, neither the language of the TCPA, nor the legislative history point to the affirmative creation of a right of indemnity or contribution by Congress. Furthermore, in… Read More
In Patterson v. Ally Financial, Inc., 2018 WL 647438, at *5 (M.D.Fla., 2018), the District Court distinguished Reyes, finding a question of fact whether the TCPA revoked consent to be called by an ATDS. The parties disagree over whether the credit application and the retail installment contract, both signed as a condition of financing, are two separate agreements or a single contract.… Read More
In Ferrer v. Bayview Loan Servicing, LLC., 2018 WL 582584, at *6 (S.D.Fla., 2018), Judge Scola granted summary judgment on a TCPA claim where the calls were manually dialed, despite the fact that the caller owned and used a dialer elsewhere. In his declaration, Gutierrez asserts that the forty-four remaining (44) calls that Bayview placed to Ferrer's cell phone during the… Read More
In Rhinehart v. Diversified Central, Inc., 2018 WL 372312, at *10 (N.D.Ala., 2018), Judge Hopkins dismissed a TCPA claim and found that an FDCPA claim failed to state facts sufficient to constitute a cause of action. Note that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any… Read More
In Kristensen v. Credit Payment Services, Inc., 2018 WL 343758, at *3 (C.A.9 (Nev.), 2018), the Court of Appeals for the Ninth Circuit found that 3 lenders and 2 marketing companies were not vicariously liable for an illegal text messaging campaign. Under these settled principles, the district court did not err in concluding that Kristensen failed to raise a genuine issue… Read More
In Ronquillo-Griffin v. Transition Rental Screening Solutions, Inc., 2018 WL 325051, at *3–5 (S.D.Cal., 2018), the District Court denied production of the actual class's call recordings in a call recording class action because the content was private. Plaintiffs assert that the requested audio recordings “are highly relevant to several requirements for a class certification motion,” including numerosity, ascertainability, commonality, predominance, and manageability.… Read More
In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales. Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More
In Gilchrist v. First National Bank of Omaha, 2018 WL 317267, at *2–3 (W.D.Wash., 2018), Judge Pechman dismissed a federal TCPA claim because it was compulsory to a debt collection action filed in the state court. There is no question in the Court's mind that there is a logical relationship between (1) the credit agreement between the Bank and Plaintiff, (2)… Read More
