TCPA

In Reyes v. Lincoln Automotive Financial Services, Inc., 2017 WL 2675363, at *6 (C.A.2 (N.Y.), 2017), the Court of Appeals for the Second Circuit held: We are sensitive to the argument that businesses may undermine the effectiveness of the TCPA by inserting “consent” clauses of the type signed by Reyes into standard sales contracts, thereby making revocation impossible in many instances.… Read More

In Klein v. Commerce Energy, Inc., 2017 WL 2672290, at *10 (W.D.Pa., 2017), Judge Conti granted summary judgment to a TCPA defendant against a Plaintiff who received calls over VoiP and through Google. There is no dispute that the challenged calls were made to Klein's VoIP number. Collectcents and Commerce Energy, however, dispute that either of them can be held… Read More

In Mbazomo v. ETourandTravel, Inc., 2017 WL 2346981, at *3 (E.D.Cal., 2017), Judge Bastian compelled production of class-wide names and telephone numbers of potential classmembers. Defendant objects to the disclosure of names and telephone numbers of potential class members on privacy grounds. Plaintiff further points out that the parties have signed a protective order, while Defendant argues that that protective… Read More

Severson & Werson authored the attached Article on D&O Insurance coverage for TCPA claims entitled, "Directors’ & Officers’ Liability Insurance Coverage for Claims Brought Under the Telephone Consumer Protection Act, and the 9th Circuit’s Anticipated Decision in Los Angeles Lakers v. Federal Insurance Company". Read More

In Doherty v. Comenity Capital Bank & Comenity Bank, Case No.: 16cv1321-H-BGS, 2017 WL 1885677 (S.D. Cal. 2017), Magistrate Judge Skomal allowed pre-certification discovery – including out-bound dial lists, but denied discovery of skip-traced and trapped numbers where a file-by-file review would be required. The Court ordered production of out-bound dial lists, despite difficulties in production by Plaintiff and overbreadth… Read More

In Reichman v. Pshmark, Inc., 2017 WL 2104273, at *2–3 (S.D.Cal., 2017), the Court granted summary judgment on the basis that totality of the circumstances did not trigger the TCPA. In determining whether an app or its user is the maker of a call, the FCC explained that it looks to “the totality of the facts and circumstances surrounding the… Read More

In Abante Rooter & Plumbing, Inc. v. Alarm.com Inc., et. al. 2017 WL 1806583, at *1–2 (N.D.Cal., 2017), Judge Rodgers certified a TCPA class consisting of potentially 500,000 putative classmembers. Plaintiffs Abante Rooter and Plumbing, Inc., Mark Hankins, and Philip K. Charvat bring this punitive class action against defendants Alarm.com, Inc. and Alarm.com Holdings, Inc. (collectively “Alarm.com”) alleging four counts;… Read More

In Blow v. Bijora, Inc., 2017 WL 1731494, at *6 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that the district court erred in granted summary judgment on the basis that no ATDS was used. Citing cases that predate the FCC's most recent rulings, Akira argues that Opt It's software must be able to dial random… Read More

In Brickman v. Facebook, Inc.,Case No. 16-cv-00751-TEH, 2017 WL 1508719 (N.D. Cal. April 27, 2017), Judge Henderson granted interlocutory appeal of his January 27, 2017 ruling denying Facebook's motion to dismiss that found that Facebook's "Happy Birthday" texts were dialed using an ATDS under the TCPA. For the foregoing reasons, Facebook’s motion to certify the Court’s Order for interlocutory appeal… Read More

In Drayton v. Toyota Motor Credit Corporation, 2017 WL 1485027 (11th Cir. 2017), the Court of Appeals found that an arbitration clause could not be enforced. Lisa Drayton brought a putative class action claim against Toyota after she allegedly received automated telephone calls from Toyota attempting to collect a consumer debt. She alleged that the calls violated the Telephone Consumer Protection Act… Read More

In Harrington v. RoundPoint Mortgage, Judge Chappelle denied a defendant's summary judgment motion, finding a triable issue of fact whether a third party could and did consent for the called party to be called on their cell phone by an ATDS. Defendants next argue that they are entitled to summary judgment on Count one because Harrington provided prior express consent to… Read More

In Declue v. United Consumer Financial Services Company, 2017 WL 1400144, at *2–4 (S.D.Cal., 2017), the District Court disagreed with the standing decision in Romero.  This court also respectfully disagrees with Romero. “There is no legal rationale for [Defendant's] argument under an Article III analysis: either a plaintiff shows a concrete and particularized harm for Article III standing because of… Read More

In Karmen Self-Forbes v. Advance Call Technologies, LLC, 2017 WL 1364206 (D. Nev. 2017), Judge Mahan granted summary judgment to a TCPA defendant based on its call records demonstrating that the Plaintiff did not revoke consent, despite Plaintiff's affidavit that she did. “Express consent is not an element of a plaintiff's prima facie case but is an affirmative defense for which the… Read More

In Meridith v. United Collection Bureau, Inc., 2017 WL 1355696, at *2 (N.D.Ohio, 2017), Judge Gaughan compelled production of class data, and ordered Defendant to write a program to do a program search or make its database available to Plaintiff's expert so that he could write the program. The information that Plaintiff seeks is relevant to establishing the size and… Read More

In Ung v. Universal Acceptance Corporation, 2017 WL 1288378, at *1 (D.Minn., 2017), Judge Kyle granted summary judgment to an automobile finance company who manually dialed calls, "refusing to go down the rabbit hole".  The Court explained: But against this simple backdrop, the parties have attempted to drag the Court down a rabbit hole, raising complex arguments about the intricacies and… Read More

In Zeidel v. A&M (2015) LLC, 2017 WL 1178150, at *6 (N.D.Ill., 2017), Judge Dow certified a TCPA class, but modified the plaintiff's class definition. Plaintiff responds that the express written consent language provides an “objective criteria” and is an easy metric for identifying proper class members. [121, at 5–6.] Plaintiff also notes that some courts have certified classes that include… Read More

In Davis v. AT&T Corp., 2017 WL 1155350, at *3–4 (S.D.Cal., 2017), the District Court denied class certification in a TCPA case.  The Court that Plaintiff's efforts to change the class definition during the certification proceedings was not permitted. This proposed class is not simply a narrower version of that proposed in the Complaints. It is an entirely different class. … Read More

In Lemieux v. Lender Processing Center, 2017 WL 1166430, at *3–4 (S.D.Cal., 2017), the District Court addressed whether a TCPA plaintiff had Art. III standing. Finally, in Romero v. Department Stores National Bank, No. 15-cv-193-CAB-MDD, 2016 WL 4184099 (S.D. Cal. Aug. 5, 2016), the court began from the premise that “[a] plaintiff cannot have suffered an injury in fact as… Read More

In Flores v. Adir International, LLC, 2017 WL 1101103, at *1 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said that a TCPA Plaintiff pleaded enough to show the use of an ATDS. Flores alleged facts sufficient to permit the district court to reasonably infer that Adir used an ATDS, as the TCPA defines that term, to… Read More

In Romero v. Department Stores National Bank, 199 F.Supp.3d 1256, 1265 (S.D. Cal. 2016), the California District Court held that a TCPA plaintiff must show that their injury from autodialed calls was substantively different than had the calls been manually dialed; “Moreover, the specific facts of this case reveal that any harm suffered by Plaintiff is unconnected to the alleged… Read More