TCPA

Stating the obvious, Judge Eagles made up procedures on how to administer a post-judgment TCPA class:  "Few contested class actions of this type have reached this stage, so there is little guidance for the Court." In Krakauer v. Dish Network, LLC, No. 1:14-CV-333, 2017 WL 3206324 (M.D. N.C. July 27, 2017), Judge Eagles decided not to enter a final judgment in the Krakauer matter following… Read More

In Bonanno v. New Penn Financial dba Shellpoint Mtg. Servicing, Case No: 5:17-cv-229-Oc-30PRL, 2017 WL 3219517 (M.D. Fla. July 28, 2017), the District Court found that the FDCPA affords no right to punitive damages. Shellpoint argues Bonanno's punitive damages and injunctive relief claims under the FDCPA should also be dismissed. The Court agrees. Damages exceeding the $1,000 cap in section… Read More

In Kalmbach v. National Rifle Association of America, Case No. C17-399-RSM, 2017 WL 3172836 (W.D. Wash. July 26, 2017), Judge Martinez rejected the Romero standing argument premised on the argument that manually dialed and automatically dialed calls are equally annoying. Defendants argue Ms. Kalmbach lacks standing to bring a claim under the WADAD for lack of an injury because “Kalmbach… Read More

In Cunningham v. Tollfreezone.com, No. 16-cv-761-jdp2017, WL 3055506 (D.Wis. July 18, 2017), Judge Peterson said how to calculate TCPA damages where each call violates multiple statutory provisions of the TCPA. Default establishes defendants' liability for the TCPA violations alleged in Cunningham's complaint, so the analysis must next turn to damages. The TCPA allows for $500 in damages for each violation of… Read More

In Caruso v. Merchant's Credit, 2017 WL 2972415, at *3 (S.D.Cal., 2017), the District Court found limited standing for a TCPA plaintiff. Further, although unwanted telephone calls can create an actual, albeit intangible, injury sufficient to constitute standing, unwanted telephone calls to a relative—even a mother—do not. See Olney v. Progressive Cas. Ins. Co., 993 F. Supp. 2d 1220, 1225… Read More

In Wick v. Twilio, Inc., 2017 WL 2964855, at *4 (W.D.Wash., 2017), Judge Laznik found that Twilio might have used an ATDS, if it was Twilio who placed the call. Contrary to Twilio's argument, the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content. Rather, the totality of the facts and… Read More

Well, they didn't actually use the word "devastation".  In Susinno v. Work out World, Inc., 2017 WL 2925432, at *4 (C.A.3 (N.J.), 2017), the Court of Appeals for the Third Circuit held that: Traditionally, a plaintiff's “privacy is invaded” for the purpose of an intrusion upon seclusion claim by telephone calls “only when [such] calls are repeated with such persistence… Read More

In Sandusky Wellness Center, LLC. v. ASD Speciality Healthcare, Inc. d/b/a/ Besse Medical AmerisourceBergen Specialty Group., Inc.,  2017 WL 2953039, at *8–11 (C.A.6 (Ohio), 2017), the Court of Appeals affirmed denial of class certification in a TCPA class action. To be sure, courts have been inconsistent in how they have accounted for difficulties in identifying class members, especially within the… Read More

In Slovin v. Sunrun, Inc., 2017 WL 2902902, at *4 (N.D.Cal., 2017), Judge Rogers declared a Rule 68 offer to TCPA class representatives invalid because to let it stand until the end of the litigation created a conflict between the class representative and the putative class. The Court finds that the individual plaintiffs could not accept the Offer without jeopardizing their… Read More

In St. Louis Heart Center, Inc. v. Vein Centers for Excellence, Inc., 2017 WL 2861878 (E.D. Mo. 2017), Judge Perry found ascertainability problems in certifying a TCPA blast-fax class. As discussed in my prior Memorandum and Order of February 7, 2017, the Eighth Circuit addressed a class action similar to this one in Sandusky, which also involved violations of the… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 2861671 (E.D. Mo. 2017), Judge Webber held that there could be due process limitations on the amount of damages recoverable in a TCPA class action. In their Motion for Partial Summary Judgment on the Issue of Damages [ECF No. 239], Plaintiffs ask the Court to determine the amount of damages to be… Read More

A copy of industry's Notice is here. Read More

In Martinez v. TD Bank USA, N.A., 2017 WL 2829601, at *5–6 (D.N.J., 2017), Judge Simandle granted summary judgment in a TCPA case on the basis that the Plaintiff's fax of revocation of consent was not a reasonable method to revoke consent because Plaintiff sent the fax to the Bank, and not a fax number designed by the Bank or… Read More

In Daubert v. NRA Group., LLC, 2017 WL 2836808, at *4–5 (C.A.3 (Pa.), 2017), the Court of Appeals for the Third Circuit found that a medical debt servicer did not meet its burden of demonstrating that it or its assignor received consent. The Sixth Circuit found prior express consent where the plaintiffs gave their cell numbers to a hospital-intermediary in… Read More

In Owens v. Starion Energy, Inc., 2017 WL 2838075, at *8–9 (D.Conn., 2017), Judge Bolden refused to strike an attorneys' fee prayer from a TCPA class action. In Bell v. Survey Sampling International, LLC, a TCPA case, this Court rejected a similar motion to strike the plaintiff's reference to attorney's fees. Id. The Court in Bell stated as follows:  "[The… Read More

In Schlusselberg v. Receivables Performance Management, LLC., 2017 WL 2812884, at *3–4 (D.N.J., 2017), Judge Wolfson granted summary judgment to a debt collector by means of LiveVox's HCI. Here, Defendant argues that LiveVox's HCI system is not by definition an ATDS under the TCPA. Defendant reasons that because HCI specifically integrates human intervention, the system does not possess the automated… Read More

In Snyder v. Ocwen Loan Servicing, LLC,  2017 WL 2798387, at *6 (N.D.Ill., 2017), Judge Kennelly certified a TCPA skip-trace class, but only for injunctive relief purposes.  The Court reserved the issue whether a liability class was fatally fail-safe. Ocwen also argues that part of plaintiffs' proposed class definition creates an impermissible ‘fail-safe‘ class and therefore that the Court should deny… Read More

In Caldera v. American Medical Collection Agency, 2017 WL 2812898, at *5 (C.D.Cal., 2017), Judge Marshall certified a TCPA skip-trace class. Plaintiff contends that prior express consent is not an individualized issue in this case, because the proposed Class is comprised only of individuals who were skip traced, or for whom Defendant did not have a valid phone number on… Read More

In Ellington v. First Premier Bank, 2017 WL 2733936, at *1–2 (M.D.Tenn., 2017), Judge Trauger permitted a third party counter-claim to proceed against the party who provided the telephone number that the TCPA defendant dialed. Plaintiff filed this action against Defendant First Premier Bank for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant violated the… Read More

In O'Shea v. American Solar Solution, Inc., 2017 WL 2779261 (C.D. Cal. 2017), Judge Lorenz rejected the Romero standing argument and found Article III standing for a TCPA class action plaintiff. This Court is not bound by Romero and, like a majority of district court cases to consider the issue, disagrees with the reasoning in that decision. As the Supreme Court stated in Spokeo, the… Read More