TCPA

In St. Louis Heart Center, Inc. v. Nomax, Inc., 2017 WL 1064669, at *2 (E.D.Mo., 2017), Judge White dismissed a TCPA class action because the class representative lacked standing. The Court agrees that SLHC has not alleged a concrete and particularized injury arising from the alleged deficiency in the opt-out notice. Spokeo,, 136 S. Ct. at 1548. Further, the Court… Read More

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More

In Smith v. Stellar Recovery, Inc. 2017 WL 955128, at *3 (E.D.Mich., 2017), Judge Murphy granted summary judgment to a TCPA defendant based on the fact that its dialer system required human intervention. II. Predictive Dialer Objection.  In her next objection, Smith argues that Stark admitted that the automated call distributor (ACD) system had ‘predictive dialer functionality‘ which makes the… Read More

In Mendez v. Optio Solutions, LLC, 2017 WL 914587, at *3 (S.D.Cal., 2017), the Court declined to stay a TCPA case pending the outcome of the ACA Int'l proceedings in the D.C. Circuit Court. Upon review of the parties' arguments in support and in opposition of a stay, as well as the reasoning of other courts to address the present… Read More

In Toldi v. Hyundai Capital America, 2017 WL 736882, at *2–3 (D.Nev., 2017), Judge Gordon found that a TCPA plaintiff had standing to sue, and declined to stay the proceedings pending the outcome of the ACA Int'l decision. A vast number of cases have addressed whether a plaintiff receiving automated calls that violate the TCPA is the sort of intangible… Read More

In Freeman v. Wilshire Commercial Capital LLC, 2017 WL 714389, at *1 (E.D.Cal., 2017), Judge Shubb rejected the argument that a TCPA plaintiff did not have Article III standing. The Ninth Circuit's opinion in Van Patten v. Vertical Fitness Group, No. 14-55980, 2017 WL 460663, ––– F.3d –––– (9th Cir. 2017) is dispositive. The Van Patten court found that, in… Read More

In Brinker v. Normandin's, 2017 WL 661372, at *2–3 (N.D.Cal., 2017), Judge Davila dismissed a TCPA case due to lack of Article III standing. Several courts have found that plaintiffs who received automated unsolicited calls have standing to bring TCPA claims. For instance, in Hewlett, the court found that “near daily” calls to the plaintiff's phone over the course of a… Read More

In Leyse v. Lifetime Entertainment Services, Inc., 2017 WL 659894, at *2 (C.A.2 (N.Y.), 2017), the Court of Appeals affirmed the District Court's denial of a 'say-so' class administration class. Leyse argues that the district court abused its discretion in denying, on ascertainability grounds, his motion to certify a class composed of “all persons to whose residential telephone lines [Lifetime] or… Read More

In Duguid v. Facebook, Inc., 2017 WL 635117, at *5 (N.D.Cal., 2017), Judge Tygar dismissed a TCPA Plaintiff's First Amended Complaint attempting to plead use of an ATDS. Here, however, Plaintiff has again failed to allege the existence of such a system. At best, his allegations are conclusory, given that he merely asserts that Facebook “maintains a database of phone… Read More

In Williams v. Santander Consumer USA, Inc., 2017 WL 492968  (N.D. Ala. 2017), Judge Haikala described how the TCPA could confer jurisdiction on an out-of-state defendant for an out-of-state plaintiff. As the Court has explained, the Tennessee plaintiffs' claims arise from Santander's practice of calling borrowers' cell phones to collect debt. Because of the mobile nature of cell phones, Santander cannot predict… Read More

In Physicians Healthsource, Inc., v. Boehringer Ingelheim Pharmaceuticals, Inc., Boehringer Ingelheim Corporation, Medica, Inc.,  2017 WL 461002, at *4 (2d Cir. 2017), the Court of Appeals for the Second Circuit put some meat on the bones of whether a fax offering a "free seminar" triggers the TCPA. Requiring plaintiffs to plead specific facts alleging that specific products or services would… Read More

In West Loop Chiropractic & Sports Injury Center, Ltd. et al., v. North American Bancard, LLC et al,  2017 WL 404896, at *1–2 (N.D.Ill., 2017), Judge Gilbert allowed TCPA discovery in a blast-fax case as to other faxes besides those that the Plaintiff received. The Court agrees with Plaintiffs that the information they seek is relevant to a decision concerning the… Read More

In Dominguez v. Yahoo!, Inc., 2017 WL 390267, at *20–22 (E.D.Pa., 2017), Judge Baylor granted summary judgment to Yahoo!. Having discussed the expert reports proffered by the Plaintiff, the Court will now consider whether, if the expert reports were admissible, the reports considered together with the experts' testimony at their depositions could establish a factual issue that the Yahoo system… Read More

In Del Valle v. Global Exchange Vacation Club, 2017 WL 433998, at *2–3 (C.D.Cal., 2017), Judge Carter declined to certify a TCPA class action because Plaintiff was not a member of the class she sought to certify.  But, Judge Carter opined on how Briseno's elimination of the ascertainability requirement interplays with whether a class action can be managed. Although Rule… Read More

In Van Patten v. Vertical Fitness Group, the Court of Appeals for the Ninth Circuit held that a plaintiff who alleges he received unconsented to text messages or telephone calls has standing to bring a TCPA claim against the sender. Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection.… Read More

In Brickman v. Facebook, Inc., 2017 WL 386238, at *3–4 (N.D.Cal., 2017), Judge Henderson found that Facebook's "Happy Birthday" texts survived a motion to dismiss.  Judge Henderson also found that the TCPA survived a constitutional challenge as violating free speech. Defendants rely heavily on Duguid v. Facebook, Inc., No. 15-cv-00985-JST, 2016 WL 1169365, at *5 (N.D. Cal. Mar. 24, 2016),… Read More

In S & A Tire and Auto, Inc. v. A.U.L. Corp., 2017 WL 345078, at *2 (E.D.Mo., 2017), Judge Nocell refused to dismiss a TCPA blast-fax case on the grounds that the invitation for on-line participation constituted advertisement under the TCPA. When viewing the facts pled by plaintiff in the light most favorable to plaintiff, they are sufficient to state… Read More

In Reynolds v. Time Warner Cable, Inc., 2017 WL 362025, at *2–3 (W.D.N.Y., 2017), Judge Payson stayed a TCPA case pending the outcome of the ACA Int'l proceedings. Weighing these interests, this Court finds that a stay is warranted. Although plaintiff surely has a genuine and recognized interest in pursuing statutory damages, he will not be significantly prejudiced by awaiting… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 193560, at *3 (E.D.Mo., 2017), Judge Webber certified a TCPA class.  The allegations of Plaintiffs' Second Amended Complaint (“Complaint”) focus on telemarketing of a movie titled “Last Ounce of Courage.” Plaintiffs allege Defendants engaged in an advertising campaign for the movie which included telephone calls to approximately four million residential telephone numbers… Read More

In Smith v. Blue Shield of California Life & Health Ins. Co., 2017 WL 167451, at *7–10 (C.D.Cal., 2017), Judge Carney dismissed a TCPA claim against Blue Shield who placed informational calls to its patient. The Ninth Circuit has stated that courts should evaluate the content of purported telemarketing “with a measure of common sense.” Chesbro v. Best Buy Stores,… Read More