TCPA

In San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., 2017 WL 4536422, at *2 (N.D.Cal., 2017), Judge Davila found that a confirming text may be, on the facts pleaded, an advertisement that triggers the TCPA. Defendants contend that the text is not advertising or telemarketing because it does not encourage Plaintiff to purchase property, goods or services. Plaintiff argues that the… Read More

In Farrish v. Navy Federal Credit Union, 2017 WL 4418416, at *2–3 (D.Md., 2017), Judge Chasanow dismissed a TCPA claim based on debt collection calls placed by a credit munition because such calls are exempt from the TCPA. The TCPA prohibits certain problematic telephone solicitation practices. 47 U.S.C. § 227(b). In enacting the TCPA, Congress allowed the Federal Communications Commission (“FCC”)… Read More

In Lundstedt v. I.C. System, Inc., 2017 WL 4281057, at *2–3 (D.Conn., 2017), Judge Meyer allowed an FDCPA claim to proceed based on the call pattern alleged in the Complaint. [D]efendant argues that the alleged pattern of calls—29 calls over a period of 24 days—is legally insufficient to show an intent to annoy, abuse, or harass plaintiff as the statute requires.… Read More

In Arwa Chiropractic, P.C. v. Med-Care Diabetic & Medical Supplies, Inc., 2017 WL 4339788, at *8–9 (N.D.Ill., 2017), Judge Lee rejected the defendant's argument that mini-trials on the issue of consent meant that a class action was not the superior means of adjudicating a TCPA blast-fax class action.  Judge Lee found that the defendant did not make a prima facie showing… Read More

In Mohamed v. American Motor Company, LLC., 2017 WL 4310757, at *3–4 (S.D.Fla., 2017), Judge Torres struck the Plaintiff's Expert Jeff Hansen as being unreliable, even though he was qualified to testify. OLO next argues that Mr. Hansen's testimony should be excluded because it is unreliable, as Mr. Hansen did not test, review, or inspect the actual platform or system before… Read More

In Eldridge v. Cabela's Inc., 2017 WL 4364205, at *9–10 (W.D.Ky., 2017), Judge Hale struck the Plaintiff's "stop" class, which Judge Hale re-characterized as a "revocation" class. Cabela's maintains that what Eldridge passes as “Stop” classes are really “Revocation” classes. In other words, the “Stop” classes are comprised of persons who had a prior relationship with Cabela's but subsequently revoked their… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 3923162, No. 4:14CV00069 ERW (E.D. Mo. September 7, 2017), Judge Webber found, after a trial on the merits, that the TCPA’s damages provision has constitutional due process limitations and, therefore, reduced the statutory damages to be awarded to $10 per call. The violations in this case involved the use of automated telephone equipment… Read More

In Greenley v. Laborers' International Union of North America, Defendant, and United States of America, Intervenor., 2017 WL 4180159, at *1 (D.Minn., 2017), Judge Wright found that a TCPA claim brought against a Union survived a Motion to Dismiss and constitutional challenge.  The facts were as follows: Greenley's amended complaint alleges that during a sixteen-month period from November 14, 2014, through March… Read More

In Riazi v. Ally Financial, 2017 WL 4260847, at *6–7 (E.D.Mo., 2017), Judge Hamilton refused to allow an auto lender pursue its debt collection claim as a counterclaim to a TCPA claim because the debt collection claim was permissive. Further, permitting the collection of an underlying debt by way of a counterclaim in a plaintiff's federal TCPA action creates “the risk… Read More

In Jackson v. Pmab, LLC, 2017 WL 4316096, at *3–4 (D.N.J., 2017), Judge Rodriquez granted partial summary judgment to a TCPA defendant, but discussed the extent to which Osorio agency survived the FCC 2015 Order. According to the FCC, the manner in which a business obtains a telephone number informs the consideration of whether a number was “knowingly released” and, therefore, permissible… Read More

In Michel v. Credit Protection Assocation, 2017 WL 3620809, at *4–5 (N.D.Ill., 2017), Judge Dow granted summary judgment for a debt collector who held two different creditors' accounts, and was autodialing a debtor.  The Court explained that a debtor's revocation of consent to be called when the debt collector called on only one of the accounts did not revoke consent… Read More

In Lanteri v. Credit Protection Assocation, LP, 2017 WL 3621299, at *4 (S.D.Ind., 2017), Judge Lawrence refused to certify a TCPA "stop-texting" revocation of consent class action. The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int'l v. FCC, No. 15-1211 (D.C.C.… Read More

In Arora v. Transworld Systems, Inc., 2017 WL 3620742, at *1 (N.D.Ill., 2017), Judge Kokoras held that a point-and-click calling system was not an ATDS due to the human intervention involved. The facts were as follows: In contrast, TSI claims that from August 25, 2014 through November 17, 2014, it placed a total of 13 calls to Arora. When calling… Read More

In Connector Castings, Inc. v. Newburg Road Lumber Co., 2017 WL 3621329, at *2 (E.D.Mo., 2017), Judge Webber refused to strike an affirmative defense lodging a constitutional challenge to the TCPA. In its first affirmative defense, Defendant asserts, in relevant part, “The Telephone Consumer Protection Act…violates the First Amendment of the United States Constitution on its face and as applied.”… Read More

In Los Angeles Lakers v. Federal Ins. Co., here, the Court of Appeals for the Ninth Circuit held that D&O insurance policies do not cover TCPA claims.  The Court of Appeals explained: When Federal received a request from the Lakers to defend them against the Emanuel complaint, Federal correctly identified the two TCPA claims as claims for invasion of privacy.… Read More

In Jones v. Royal Administration Services, Inc., --F.3d --, 2017 WL 3401317, at *6 (9th Cir. 2017), the Court of Appeals for the Ninth Circuit said that federal common law decides agency issues in TCPA telemarketing cases. Royal does not challenge whether there is sufficient evidence in the record to create a genuine issue of material fact as to whether AAAP's… Read More

After initially suggesting in Meadows v. Franklin Collection Service, Inc., 2011 WL 479997  (11th Cir. 2011) that it might take a decent approach towards TCPA litigation, the Court of Appeal for the 11th Circuit in Schweitzer v. Comenity Bank, 2017 WL 3429381, at *3 (C.A.11 (Fla.), 2017) issued another in a series of pro-TCPA-plaintiff decisions ensuring more work for its already overworked… Read More

In Mendez v. Optio Solutions, LLC, 2017 WL 3315971, at *2 (S.D.Cal. 2017), the District Court denied a TCPA defendant's MSJ to allow discovery into the Defendant's dialer system. Mendez contends that she cannot adequately respond to Optio's summary judgment motion without discovery relating to Optio's “ ‘custom-built’ dialing system.” (Doc. No. 36 at 28.) Specifically, Mendez argues she needs… Read More

In Geismann, M.D., v. ZocDoc, Inc., 14 Civ. 7009 (LLS), 2017 WL 3263140 (S.D.N.Y. July 28, 2017), Judge Stanton filled the gap left by Campbell-Ewald, and allowed a TCPA defendant to tender to the Court all sums for which it could possibly be liable and then move for summary judgment on an Article III basis. I agree with those cases… Read More

In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More