TCPA

In Abante Rooter & Plumbing v. Farmers Group, Inc.,  2018 WL 288055, at *6 (N.D.Cal., 2018), Judge Hamilton found that a TCPA Plaintiff had adequately pleaded use of an ATDS used by an alleged Farmers representative in a telemarketing campaign, but found that the Plaintiff had failed to plead enough facts to demonstrate that Farmers should be responsible for the alleged… Read More

In Casto v. Branch Banking & Trust Company, 2018 WL 265586, at *1–13 (S.D.W.Va., 2018), Judge Chambers denied a Bank's summary judgment seeking to dispose of a TCPA claim, in part, finding problems with Defendant's "mail-box" rule argument with respect to when the Defendant's agent received the written revocation. Indeed, Defendant vies for summary judgment upon the receipt date of the… Read More

In Geismar v. Owen Loan Servicing, LLC., 2018 WL 276813, at *4 (N.D.Cal., 2018), Judge Corely tired of waiting for the DC Circuit to issue its decision in the ACA Int'l proceedings and lifted a stay, but granted a lender's motion to dismiss a common law negligence claim that was filed as  corollary to a TCPA claim. The Court recognizes that some California federal… Read More

In this Article, Severson & Werson partners Rebecca Saelao and Scott Hyman discuss the effect of a class action plaintiff’s dismissal of claims or damages at the instruction of class counsel in order to conform their individual claim to the claims of the putative class and, purportedly, to better their chances for class certification.   A copy of the Article can… Read More

Severson & Werson's Financial Services Practice Group's Law Bulletin on "California State and Federal Courts Have Different Class Certification Rules on Whether Putative Class-members Must Be Ascertainable" can be found here.   Read More

In Etter v. Allstate Insurance Company, 2017 WL 6594069, at *4–5 (N.D.Cal., 2017), Judge Alsup denied certification of one TCPA blast-fax case due to lack of class representative's standing, but granted certification of a second class.  As to the standing issue, Judge Alsup found that: Etter cites various decisions for the proposition that “awareness” of an offending transmission is unnecessary to establish… Read More

In Gold v. Ocwen Loan Servicing, LLC, 2017 WL 6342575, at *2 (E.D.Mich., 2017), Judge Murphy granted in part and denied in part a TCPA defendant's motion to dismiss. Plaintiff's TCPA claims regarding phone calls made prior to May 10, 2013 are time barred. TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a); see… Read More

In Miller v. Ginny's Inc., 2017 WL 6398302, at *4–5 (M.D.Fla., 2017), Judge Honeywell denied a TCPA plaintiff's summary judgment motion. Miller submitted an affidavit in which she attested that every time she spoke with a Ginny's representative, she requested that Ginny's stop calling her, that she would not make payment, and that she preferred to receive written bills every… Read More

In Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629, at *2 (N.D.Cal., 2016), Judge Hamilton held that the amendment to the TCPA exempting "cal[s]... made solely to collect a debt owed to or guaranteed by the United States" (47 U.S.C. § 227(b)(1)(A)(iii)) applied retroactively, thus providing grounds in that case for summary judgment to the Defendant.  In Silver v.… Read More

In West v. California Services Bureau, Inc., 2017 WL 6316823, at *2 (N.D.Cal., 2017), Judge Rogers certified a "wrong number" TCPA class.  The facts were as follows: Plaintiffs allege that defendant “repeatedly” called them on their cellular telephones using an autodialer and/or an artificial or prerecorded voice. (Id. ¶¶ 25-26, 29-30.) Plaintiffs further allege that they did not provide defendant… Read More

In Stephens v. Comenity, LLC dba Comenity Bank, 2017 WL 6316630, at *2–3 (D.Nev., 2017), Judge Du struck a third party counter-claim against the daughter of the TCPA Plaintiff.  The daughter allegedly gave the telephone number to the Defendant that lead the Defendant to call the Plaintiff. . . .the Court finds that impleader is improper for three reasons: (1)… Read More

In Ewing v. Charter Communications Holding Company, LLC., 2017 WL 6049379, at *3–4 (S.D.Cal., 2017), Judge Benitez ordered a TCPA case to arbitration over the consumer's objection that he opted-out. In his opposition, Ewing does not object to or otherwise dispute Ms. Flores's declaration or the attached evidence of his account history. His sole argument is that he “followed the… Read More

In Progressive Health and Rehab Corp. v. Quinn Medical, Inc., 2017 WL 6015810, at *2–4 (S.D.Ohio, 2017), Judge Marbley found that a TCPA blast-fax case was a "fail-safe" class, but striking the class allegations was premature. Defendants argue that Plaintiff's class allegations should be stricken because the proposed class constitutes a “fail-safe” class. (ECF No. 20 at 4). As a… Read More

In Herrera v. First National Bank of Omaha, N.A., 2017 WL 6001718, at *3–4 (C.D.Cal., 2017), Judge Lew denied a TCPA Plaintiff's summary judgment motion arguing that the Plaintiff had revoked consent to be called. “The TCPA does not explicitly grant consumers the right to revoke their prior express consent.” Van Patten, 847 F.3d at 1047 (internal citations omitted). In… Read More

In Ginwright v. Exeter Finance Corp., No. CV TDC-16-0565, 2017 WL 5716756 (D. Md. Nov. 28, 2017, the District Court rejected applying  Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), which held that contractually bargained for consent under the Telephone Consumer Protection Act (“TCPA”) cannot be revoked.  The court in Ginwright went on, however, to deny… Read More

In MacKinnon v. Hof's Hut Restaurants, Inc.,  2017 WL 5754308, at *2 (E.D.Cal., 2017), the district court found that a confirming text with a "see specials" link was not an "advertisement" under the TCPA. Defendant's website did not constitute advertising or telemarketingsince it just informed plaintiff that joining a rewards program would result in freerewards points). Also, messages “whose purpose is… Read More

In Viggiano v. Kohl's Department Stores, Inc., 2017 WL 5668000, at *4 (D.N.J., 2017), Judge Martinotti dismissed a Plaintiff's TCPA case by failure to allege adequate revocation of consent. Here, Plaintiff has pled she received replies to her efforts to opt out instructing her to text “STOP” to opt out of future texts. (ECF No. 1 ¶ 14.) Accepting the… Read More

In Breda v. Cellco Partnership d/b/a/ Verizon Wireless, 2017 WL 5586661, at *3–5 (D.Mass., 2017), Judge Casper granted summary judgment to a TCPA defendant because Plaintiff's number had been assigned to a VoiP plan that was not protected by the TCPA.  The facts were as follows: Cellco placed calls to Breda's phone number to discuss a Verizon customer's account status in error (the… Read More

In Selby v. Ocwen Loan Servicing, LLC, 2017 WL 5495095, at *3 (S.D.Cal., 2017), Judge Bencivengo granted a motion to dismiss in a TCPA case based on lack of standing. The Ninth Circuit's decisions since Romero do not require a different outcome. Plaintiff relies extensively on the Ninth Circuit's recent opinion in Van Patten v. Vertical Fitness Group, LLC, 847… Read More

In Bally v. First National Bank of Omaha, 2017 WL 4841420, at *2 (E.D.Mich., 2017), Judge O'Mear denied a TCPA Plaintiff's Motion for Summary Judgment because he hung up and the Defendant did not understand his revocation. On December 6, 2016, Defendant called Plaintiff in an attempt to collect a debt. During that call, Plaintiff told Defendant to stop calling him,… Read More