TCPA

In Pozo v. Stellar Recovery Collection Agency, Inc., here, Judge Porcelli granted summary judgment to a debt collector under the TCPA who argued that no ATDS was used. Furthermore, dialing systems which require agents to use an electronic “point and click” function to initiate calls are not autodialers because human intervention is required to initiate the calls. See Jenkins v.… Read More

In Chyba v. Bayview Loan Servicing, LLC, 2016 WL 5405557, at *3–4 (S.D.Cal., 2016), Judge Benitez held that mere ownership of an ATDS and mere allegations of "pauses" was insufficient to create a question of fact on MSJ, when Caller established that calls were manually dialed. Plaintiff submits an affidavit, a handwritten call log,2 and photographs of a cell phone… Read More

In ARcare v. IMS Health, Inc., 2016 WL 4967810, at *3 (E.D.Ark., 2016), Judge Holmes dismissed a TCPA blast-fax case on the basis that the faxes were not "advertisements. Accepting the complaint's allegations as true and drawing all inferences in ARcare's favor, the Court concludes that the faxes in dispute are non-commercial messages that fall outside that TCPA's ban on… Read More

In Vinny's Landscaping, Inc. v. United Auto Credit Corporation, 2016 WL 4801276, at *3 (E.D.Mich., 2016), Judge Cox allowed a TCPA-Junk Fax case past the pleading stage against an automobile finance company. The Sixth Circuit first addressed the issue of whether or not a fax constitutes an advertisement under the TCPA in 2015. See Sandusky Wellness Center, LLC v. Medco… Read More

In Konopca v. Center for Excellence in Higher Education, Inc., 2016 WL 4644461, at *2–3 (D.N.J., 2016), Judge Arpert denied a request to stay a TCPA case until the ACA proceedings had run their course. The first factor the Court considers is whether a stay would unduly prejudice the Plaintiff. Here, if a stay is granted, there is the potential… Read More

In Aderhold v. Car2Go N.A., LLC,  2016 WL 4709873 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that a TCPA plaintiff consented to receive texts messages as part of the registration process for a car-sharing program. Eric Aderhold appeals the district court's dismissal of his putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.… Read More

In Alpha Tech Pet, Inc. v. Lagasse, LLC, 2016 WL 4678316, at *3–5 (N.D.Ill., 2016), Judge Durkin denied a motion to dismiss a blast fax case, finding that the faxes plausibly were advertisements. Here, all four faxes Defendants contest are plausibly advertisements. The March 15 and February 15 faxes provide the prices for certain goods and encourage customers to investigate… Read More

In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More

In Shaun Fauley v. Drug Depot, Inc., 2016 WL 4591831, at *3 (N.D.Ill., 2016), Judge Kendall allowed a TCPA blast-fax class action past the pleadings stage based on post-Spokeo standing. Based on that holding, APS contends that the Complaint should be dismissed as it is alleges nothing more than a procedural violation of the TCPA. (See Dkt. No. 40 at… Read More

In Juarez v. Citibank, N.A., 2016 WL 4547914 (N.D. Cal. 2016), Judge Orrick confirmed (again) his opinion that the TCPA afford Article III standing to TCPA plaintiffs who received multiple telephone calls. Several courts have addressed whether a plaintiff’s allegations that she received annoying and unwanted phone calls in violation of the TCPA is sufficient to establish Article III standing… Read More

In Hewlett v. Consolidated World Travel, Inc., 2016 WL 4466536, at *3 (E.D.Cal., 2016), Judge Shubb found Article III standing for multiple texts received by a TCPA Plaintiff. In support of its argument that plaintiff here does not sufficiently state a concrete injury, defendant relies on a ruling in a similar TCPA class action in Smith v. Aitima Medical Equipment,… Read More

In Aranda v. Caribbean Cruise Line, Inc., 2016 WL 4439935, at *6–7 (N.D.Ill., 2016), Judge Kennelly found post-Spokeo standing for a TCPA class representative and said that individual inquiries regarding class members' standing did not affect class certification. The Court respectfully disagrees with the reasoning of the judge in Aitima Medical Equipment. In contrast to statutes that impose obligations regarding how one… Read More

In Dixon v. Monterey Financial Services, Inc., 2016 WL 4426908, at *1–2 (N.D.Cal., 2016), Judge Chesney struck a TCPA class definition a second time, as the amendment to the class definition still was a fail-safe class. By order filed June 24, 2016, the Court granted defendant's motion to strike the class allegations in the First Amended Complaint (“FAC”), finding the… Read More

In Smith v. Aitima Medical Equipment, Inc., here,  Judge Birotte dismissed a TCPA claim based on lack of Art. III standing.  In Szumilas v. CBE Group, LLC., here, however, Judge Birotte found Art. III standing in a TCPA case.  The difference between the two outcomes seemed to be the volume of the calls.   Read More

In Lee v. Loandepot.com, LLC, 2016 WL 4382786, at *5 (D.Kan., 2016), Judge Melgren held that the Husband, as a regular user of the wife's cell phone, had standing to sue under the TCPA. Moving on to the legal issue at hand, the 2015 FCC Order defines the term “called party” as the “subscriber, i.e., the consumer assigned the telephone… Read More

In Ikuseghan v. Multicare Health System, 2016 WL 4363198, at *2 (W.D.Wash., 2016), Judge Settle surveyed TCPA class action settlements and found that 30% of the recovery was a proper benchmark for awarding attorneys fees in a TCPA class action. Here, the requested attorneys' fees represent 33% of the settlement fund. Ikuseghan argues district courts frequently grant fee awards of… Read More

In Jenkins v. MGage, LLC, 2016 WL 4263937, at *5–7 (N.D.Ga. 2016), the District Court found that the human intervention required to trigger the sending of text messages disqualified Defendants' text-message system from constituting an ATDS. Defendants argue they are entitled to summary judgment because the text messages were sent as the result of human intervention, and thus were not… Read More

In Gomez v. Oxford Law, LLC,  2016 WL 4174321, at *2–3 (3rd Cir. 2016), the Court of Appeals for the Third Circuit held that a TCPA violation did not automatically constitute an FDCPA violation. Specifically, Gomez argues that Oxford Law violated this provision not by making a threat to take any action that cannot legally be taken, but rather by actually taking… Read More

In Telephone Science Corporation v. Asset Recovery Solutions, LLC, 2016 WL 4179150, at *5 (N.D.Ill., 2016), Judge St. Eve found adequate standing in a TCPA case. TSC operates a service called “Nomorobo,” designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission (“FTC”) refers to as “robocalls”—calls made with either an automatic telephone dialing system (“ATDS”)… Read More

In Romero v. Department Stores National Bank, 2016 WL 4184099, at *5–6 (S.D.Cal., 2016), Judge Bencivengo distinguished the types of calls that may afford Spokeo standing in a TCPA case. The Court is therefore unpersuaded by the reasoning of the various other district court decisions since Spokeo that have found that the plaintiffs had suffered a concrete injury and therefore had standing… Read More