TCPA

In Borden v. Efinancial, Ltd. Liab. Co., No. 21-35746, 2022 U.S. App. LEXIS 31613, at *3-4 (9th Cir. Nov. 16, 2022), the Court of Appeals for the 9th Circuit found that to be an ATDS, the system must randomly or sequentially generate telephone numbers, not other sorts of numbers. So a system that selects telephone from a previously entered list… Read More

In Beard v. John Wester Chevrolet, LLC, No. 5:21-CV-173-D, 2022 U.S. Dist. LEXIS 204379, at *7-9 (E.D.N.C. Nov. 9, 2022), Judge Dever found that ringless voicemail technology is a 'call' under the TCPA. Although only a few courts have addressed whether a ringless voicemail is a call under the TCPA, every court that has addressed this question has held that… Read More

In Hylton v. Titlemax of Va., Inc., No. 4:21-cv-163, 2022 U.S. Dist. LEXIS 202470, at *8 (S.D. Ga. Nov. 7, 2022), Judge Baker denied a TCPA defendant's summary judgment in a re-assigned number case. Titlemax argues that summary judgment is warranted because Jennings consented to Titlemax calling the 7270 Number concerning his account. (Doc. 65-1, pp. 7-9.) This argument fails.… Read More

In Wakefield v. ViSalus, Inc., No. 21-35201, 2022 U.S. App. LEXIS 29228 (9th Cir. Oct. 20, 2022), the Court of Appeals held that aggregation of the TCPA’s penalties to $925 million raised due process concerns. ViSalus last argues that the Due Process Clause of the Fifth Amendment requires a reduction of the $925,220,000 statutory damages award. HN8 Whether a damages… Read More

In Chennette v. Porch.Com, Inc., No. 20-35962, 2022 U.S. App. LEXIS 28354, at *1-4 (9th Cir. Oct. 12, 2022), the panel reversed the district court's judgment dismissing a complaint, brought by 51 individuals who are home improvement contractors, alleging violations of the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227(b) and (c); and remanded.  GoSmith's and Porch.com's business model… Read More

In Barton v. Serve All Help All Inc., No. 3:21-cv-5338 RJB, 2022 U.S. Dist. LEXIS 161487, at *8 (W.D. Wash. Sep. 7, 2022), Judge Bryan denied summary judgment all around, but also denied a TCPA defendant's jurisdictional motion. Defendant argues that the Plaintiff cannot show that he has been "injured in fact" because he has not shown that he has… Read More

In Pizarro v. Quinstreet, Inc., No. 22-cv-02803-MMC, 2022 U.S. Dist. LEXIS 145556, at *1-2 (N.D. Cal. Aug. 15, 2022), Judge Chesney ordered a TCPA Class-action Plaintiff's case to arbitration. In her Complaint, Pizarro alleges QuinStreet is a "marketing company" that "sells consumer contact information to lenders" in exchange for referral fees. (See Compl. ¶ 4.) Specifically, Pizarro alleges, QuinStreet "harvests… Read More

In Brickman v. Meta (9th Cir. No. 21-16785),  the Court of Appeals for the 9th Circuit is poised to rule on efforts to evade the SCOTUS' ruling in Duguid.  According to the Respondent's Brief, the issue is framed as: This appeal involves an effort to evade the consequences of binding Supreme Court precedent that squarely forecloses Plaintiff’s claim. The Telephone Consumer Protection… Read More

In In re Portfolio Recovery Assocs., LLC, Consumer Act Litig., 2022 U.S. Dist. LEXIS 141028, at *30-34 (S.D. Cal. Aug. 8, 2022), Judge Houston stayed a TCPA case based on an ATDS issue currently pending before the 9th Circuit in Brinkman. Plaintiffs seek a stay of this action pending the resolution of Brickman v. Facebook, Inc., currently before the Ninth… Read More

In Weister v. Vantage Point AI, LLC, No. 8:21-cv-1250-SDM-AEP, 2022 U.S. Dist. LEXIS 139642, at *2-5 (M.D. Fla. Aug. 3, 2022), Judge Merryday denied summary judgment to a ringless voicemail message provider whose telemarketing messages were challenged under the TCPA. The facts were as follows: The following facts are either undisputed or construed in Weister's favor. VantagePoint sells "financial, technical… Read More

In Moore v. Robinhood Fin. LLC, No. 2:21-cv-01571-BJR, 2022 U.S. Dist. LEXIS 138392, at *2-5 (W.D. Wash. Aug. 3, 2022), Judge Rothstein allowed a CEMA claim to proceed against Robin Hood under its "Refer-a-Friend" program. The facts alleged are as follows: Robinhood is an online investments brokerage service firm that, through its free mobile application (the "Robinhood App") and website,… Read More

In Costa v. Dvinci Energy, Inc., Civil Action No. 21-11501-NMG, 2022 U.S. Dist. LEXIS 130208, at *4-6 (D. Mass. July 22, 2022), Judge Gorton declined to strike a TCPA class action at the pleadings stage despite complaints that it is a "fail-safe" class. Dvinci contends that the proposed class is fail-safe—and thus must be struck—because it defines its membership in… Read More

In Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., No. 3:19-cv-592 (JAM), 2022 U.S. Dist. LEXIS 126468, at *6-8 (D. Conn. July 18, 2022), Judge Meyer disposed of the argument that Subway's text message software was an ATDS. And under Soliman's reading, the Act would probably cover much more than mass dialing. As she admits, sequential number generation is "an… Read More

In Panzarella v. Navient Sols., Inc., No. 20-2371, 2022 U.S. App. LEXIS 16324, at *11-12 (3d Cir. June 14, 2022), the Court of Appeals for the 3rd Circuit held that Navient's dialer was an ATDS, but it's ATDS-capacity was not "used" to call .  As to the ATDS question, the Court of Appeals held: Applying this construction here, we find… Read More

In Mina v. Red Robin Int'l, Inc., Civil Action No. 20-cv-00612-RM-NYW, 2022 U.S. Dist. LEXIS 104423, at *10-16 (D. Colo. June 10, 2022), Judge Wang dismissed a TCPA case at the pleadings stage for absence of an ATDS under Duguid. [Defendant] maintains that Duguid does not foreclose a conclusion that the text messaging program used by Defendants constitutes an autodialer under… Read More

In Moskowitz v. Am. Sav. Bank, F.S.B., No. 20-15024, 2022 U.S. App. LEXIS 16016, at *8 (9th Cir. June 10, 2022) Moskowitz argues the district court erred in granting summary judgment for ASB because ASB did not have the consent required under the TCPA to send the responsive text messages to Moskowitz. We have already determined that the type of… Read More

In Barnett v. First Nat'l Bank of Omaha, Civil Action No. 3:20-cv-337-CHB, 2022 U.S. Dist. LEXIS 104029, at *5-8 (W.D. Ky. June 10, 2022), Judge Boom denied a motion to reconsider a finding that the TCPA defendant's LiveVox system was not an ATDS. In his Motion, Barnett claims that the Court failed to consider FNBO's use of the TWX system in… Read More

In Williamson v. Irving K Motor Co. LLC, Civil Action No. 3:21-CV-1599-L-BH, 2022 U.S. Dist. LEXIS 101052, at *15-18 (N.D. Tex. June 7, 2022), Judge Ramirez denied a motion to dismiss a TCPA claim brought on the argument that SCOTUS' AAPC rendered the TCPA unenforceable from 2015 to 2020. A small number of district courts, including the Eastern Districts of Texas… Read More

In Demesa v. Treasure Island, LLC, No. 2:18-cv-02007-JAD-NJK, 2022 U.S. Dist. LEXIS 98511, at *8-9 (D. Nev. June 1, 2022), Judge Dorsey rejected a TCPA Plaintiff's attempted end-around Duguid, where the Plaintiff argued that a standard text message fell within section 47 U.S.C. § 227(b)(1)(B)'s prohibition against using "artificial or prerecorded voice" without consent. DeMesa's alternative theory of liability fares no better.… Read More

In Berman v. Freedom Fin. Network, LLC, No. 20-16900, 2022 U.S. App. LEXIS 9083, at *12-14 (9th Cir. Apr. 5, 2022), the 9th Circuit addressed the enforceability of an arbitration agreement set forth on a website that allowed the consumer to click-through the operator's various policies and the arbitration.  The Court of Appeals stated the rule as follows: The most… Read More