TCPA

In Cabiness v. Educational Financial Solutions, LLC., 2017 WL 167678, at *2 (N.D.Cal., 2017), Judge Tygar denied a TCPA defendant's motion to dismiss based on lack of purported Art. III Standing. Specifically, the Defendant relies on Romero v. Dep't Stores Nat'l Bank, 15-cv-193, 2016 WL 4184099 (S.D. Cal. 2016). ECF No. 50 at 7. In that case, the court held that… Read More

In Frisch v. AllianceOne Receivables Management, LLC, 2017 WL 25471 (E.D. Wis. 2017), Judge Pepper granted summary judgment to a debt collection agency who manually dialed calls, even though the caller "had" an ATDS. The court agrees that there are evidentiary problems with the evidence the plaintiff has presented. Even if the documents were admissible, however, the plaintiff still would… Read More

In Comprehensive Health Care Systems of Palm Beaches, Inc. v. Vitaminerals VM/Orthopedics, Ltd., 2017 WL 27263, at *4–6 (N.D.Ohio, 2017), Judge Burke dismissed a TCPA blast-fax against a defendant on whose behalf the fax allegedly was sent. Hygenic submits that these allegations are insufficient to state a claim that Hygenic is liable under the TCPA because the Amended Complaint generically lumps… Read More

In Sartin v. EKF Diagnostics, Inc., 2016 WL 7450471, at *6–7 (E.D.La., 2016), Judge Vance refused to strike a TCPA class action. [D]efendants argue that Dr. Sartin's proposed class definition fails to establish an ascertainable group, whose boundaries can be defined and policed in an administratively feasible way. To maintain a class action, the proposed class must be adequately defined… Read More

In St. Clair v. CVS Pharmacy, Inc. 2016 WL 7489047, at *2 (N.D.Cal., 2016), Judge Chhabria denied a motion to dismiss a TCPA grounded in automated calls reminding of prescription refills. Another strike against CVS's argument is that the FCC has addressed automated prescription reminders in a different context. In addition to the two statutory exemptions to TCPA liability (“emergency purposes”… Read More

In Arkow v. Commissioner of Internal Revenue, 2016 WL 7377286 (U.S. Tax Ct. 2016), Judge Vasquez held that a TCPA plaintiff failed to report taxable income on a $3,000 TCPA settlement. In December 2011 petitioner husband filed a complaint against Wyndham in the Superior Court of California for Los Angeles, California, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. sec. 227… Read More

In Lawrence v. Bayview Loan Servicing, LLC, --- Fed.Appx. ----2016 WL 7407243 (11th Cir. 2016), the Court of Appeals for the 11th Circuit found that a TCPA re-established consent to be called by an autodialer when he gave his telephone number again to the caller without qualification. Lawrence argues that the District Court erred by finding that, as a matter of law,… Read More

In Warciak v. One, Inc., 2016 WL 7374278 (Approx. 5 pages), Judge Kennelly allowed a TCPA claim to proceed against a social networking app. One argues that the After School App functions just like TextMe and therefore that its users initiate the allegedly unlawful text messages. Def.'s Mem. in Supp. of Mot. to Dismiss 9–10. But Warciak's allegations identify significant differences between… Read More

In Bridging Communities, Inc. v. Gamble Plumbing and Heating, Inc., individually and as the representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE FINANCIAL INCORPORATED, Defendant-Appellee., 2016 WL 7241401, at *4–5 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit found that common questions predominated in a TCPA blast-fax class action, and reversed the District… Read More

In Mbazomo v. Etourandtravel, Inc., 2016 WL 7165693 (E.D. Cal. 2016), Judge Bastian found Art. III standing in a TCPA case. The Court concludes that Plaintiff’s alleged harm is sufficiently concrete to survive the motion to dismiss. The history of sustaining claims against both unwelcome intrusion into a plaintiff’s seclusion and unceasing debt-collector harassment are squarely “harm[s] that [have] traditionally… Read More

In Wilkes v. Caresource Mgmt. Group Co., 2016 WL 7179298 (N.D. Ind. 2016), Judge Degulio allowed a TCPA class action to proceed beyond the pleadings stage. CareSource argues that the Plaintiffs cannot satisfy the predominance requirement because each potential class member’s claim would require individual inquiries into whether that class member provided consent and, if so, whether they revoked that… Read More

In Hunsinger v. Gordmans, Inc., 2016 WL 7048895, at *5–6 (E.D.Mo., 2016), Magistrate Judge Nocel deferred summary judgment on whether an ATDS was used until there was further discovery undertaken. The question at issue is whether the mGage platform Gordmans used to send the text messages constitutes an ATDS. The TCPA defines an ATDS as “equipment which has the capacity… Read More

In Tillman v. Ally Financial, Inc. 2016 WL 6996113 (M.D. Fla. 2016), the Court allowed a TCPA class action proceed, denying that the class definition is a "fail-safe" class. Finally, defendant moves in the alternative to strike the Complaint's class allegations on the ground that plaintiff has proposed an impermissible “fail-safe” class. A fail-safe class is one whose definition incorporates the elements… Read More

In Williams v. Nationstar Mortgage, LLC, 2016 WL 6905382, at *3 (D.Or. 2016), Judge Coffin stayed a TCPA case until the ACA Int'l proceedings are completed. Moreover, this court finds that staying these proceedings until a decision is rendered in ACA International could lead to reduced discovery on the issue of whether defendant used an ATDS to contact plaintiffs. Such… Read More

In Chladni v. University of Phoenix, Inc., 2016 WL 6600045, at *3 (E.D.Pa., 2016), Judge Leeson found that a TCPA Plaintiff could not invalidate her consent to receive autodialed calls on the basis that she was not given a meaningful opportunity to avoid them. It is undisputed that on June 22, 2015, when Chladni submitted a job application online, she… Read More

In Wick v. Twilio Inc., 2016 WL 6460316, at *2–3 (W.D.Wash., 2016), Judge Lasnik dismissed a TCPA Plaintiff's claim against Twilio on the basis that the Plaintiff consented to receive the text messages at issue. The parties disagree as to whether the text and call at issue qualifies as telemarketing. If the text and call do qualify as telemarketing, then… Read More

In Spencer Ung v. Universal Acceptance Corporation, 2016 WL 4132244, at *2–3 (D.Minn., 2016), Judge Kyle rejected a Spokeo challenge to a TCPA claim. Although Spokeo did not determine whether the plaintiff had suffered an injury sufficient to confer standing to sue, Universal nevertheless cites it to argue Ung has not suffered a sufficient concrete injury here. Cases, however, have… Read More

In Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *12 (N.D.Ill. 2016), Judge Kocoras found that an automobile finance company's calls to a TCPA class action plaintiff through its Aspect dialer used an ATDS under the TCPA. Santander's alternative ground for summary judgment asserts, not the consent of the called parties, but the equipment it used to call them. Santander… Read More

In Ewing v. SQM US, Inc., 2016 WL 5846494, at *2–3 (S.D.Cal., 2016), Judge Bencivengo dismissed a TCPA claim because the alleged harm -- a charge for the call - would have been incurred whether the call was properly placed (manually) or improperly placed (autodialed).  Accordingly, it did not confer "concrete injury" sufficient to confer Article III standing. The only allegation in… Read More

In Bates v. American Credit Acceptance, LLC, 2016 WL 5477429, at *3 (E.D.Mich., 2016), Judge Tarnow exercised supplemental jurisdiction over a collection cross-complaint filed in response to a TCPA claim. The Court finds that Plaintiffs' claims and Defendant's counterclaim are sufficiently part of the same case or controversy to warrant the exercise of supplemental jurisdiction. The claims at issue clearly… Read More