TCPA

In Silver v. Pennsylvania Higher Education Assistance Agency, 2016 WL 1258629, at *2-4 (N.D.Cal., 2016), Judge Hamilton granted summary judgment to the PHEAA in a TCPA claim on the grounds that the the amendments to the TCPA exempting them apply retroactively. Defendant argues that there is no dispute that the loans at issue in this case were federally funded student loans, and… Read More

In Strauss v. CBE Group, (Case No. 15-62026), here, Judge Cohn granted summary judgment to a debt collector on the basis that it's point-and-click telephony software and hardware system did not constitute an ATDS under the TCPA. Plaintiff has failed to create a material dispute regarding CBE’s use of an ATDS after April 15, 2014. The evidence clearly establishes that CBE made… Read More

In Duguid v. Facebook, Inc., 2016 WL 1169365, at *5-6 (N.D.Cal., 2016), Judge Tygar dismissed a TCPA case against Facebook because the Plaintiff could not plead that the texts were randomly generated. Here, as in Flores, Plaintiff's allegations do not support the inference that the text messages he received were sent using an ATDS. Plaintiff alleges that the login notifications… Read More

In Mey v. Got Warranty, Inc., 2016 WL 1122092, at *3 (N.D.W.Va., 2016), Judge Bailey stayed a TCPA case pending the outcome of Spokeo. As noted by the defendants, many district courts throughout the country have granted stay pending the Supreme Court's Spokeo decision, including many cases involving the TCPA. Although there are also several district courts that have denied similar stays, an analysis… Read More

In Reo v. Caribbean Cruise Line, Inc., 2016 WL 1109042, at *4 (N.D.Ohio, 2016), Judge Nugent held that a TCPA Plaintiff must plead some threshold facts to demonstrate that an ATDS was used. Review of TCPA cases confirms that district courts are split as to the sufficiency of a plaintiff's pleadings on the ATDS issue. See Aikens, supra; Padilla v.… Read More

In Herrera v. AllianceOne Receivable Management, Inc., 2016 WL 1077110, at *1 (S.D.Cal., 2016), Chief Judge Moskowitz held that the TCPA does not apply to debt collection calls placed by an autodialer for debt collection purposes when the call does not include a pre-recorded message.  The facts were as follows: The allegations in Plaintiffs' FAC, filed on June 23, 2015,… Read More

In Saragusa v. Countrywide, 2016 WL 1059004, at *4 (E.D.La., 2016), Judge Vance found that a TCPA plaintiff had pleaded no facts suggesting that the calls were not manually dialed. The TCPA defines the “automatic telephone dialing system” as equipment capable of “stor[ing] or produc[ing] telephone numbers to be called, using a random or sequential number generator [and] dial[ing] such… Read More

In Bridgeview Health Care Center, Ltd. v. Clark, 2016 WL 1085233, at *2-3 (7th Cir. 2016), the Court of Appeals for the Seventh Circuit affirmed the District Court's rejection of agency liability under the TCPA, where the authority to the agent was limited. In determining what theory should govern Clark's liability, the trial court correctly rejected strict liability by recognizing that… Read More

In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows: On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued… Read More

In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff's motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination. Plaintiff's interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary… Read More

In Vernell v. Nuvell Credit Company, LLC, 2016 WL 931104, at *3-4 (M.D.Fla., 2016), the Court refused to exercise supplemental jurisdiction over an automobile finance company's counter-claim to its customer's TCPA claim. It is clear from the record that the Counterclaim—a simple breach of contract claim—does not raise a new or complex issue of state law, the federal law claim has… Read More

In Kaplinsky v. Robert Wood Johnson University Hospital, 2016 WL 885049, at *2-3 (D.N.J., 2016), Judge Thompson found that a TCPA Plaintiff need plead that he was charged for the call in order to state a claim. But as to Plaintiff's second argument, the Court finds that it is necessary to grant reconsideration on this point. Whether a plaintiff must… Read More

In O'Hanlon v. 24 Hour Fitness USA, Inc., 2016 WL 815357, at *6 (N.D.Cal., 2016), Judge Freeman stayed a TCPA class action pending the outcome of Spokeo, but felt it inappropriate to wait for the DC Circuit to decide the ACA case because the district court would not be bound by the DC Circuit's decision. For the foregoing reasons, Defendant's motion to stay… Read More

In Gehrich v. Chase Bank USA, N.A., 2016 WL 806549, at *19 (N.D.Ill., 2016)Ill., Judge Feinerman approved a $34M TCPA Class Action settlement. For the foregoing reasons, the motions for class certification and incentive awards are granted, while the motions for final approval of the settlement and for attorney fees are granted in part and denied in part. The court modifies… Read More

In Keim v. ADF Midatlantic LLC,  2015 U.S. Dist. LEXIS 159070 (S.D. Fla. Nov. 9, 2015) (unpublished), Judge Marra denied a motion to dismiss based on the argument that human intervention disqualified the text message campaign engaged in by Pizza Hut. In Keim, consumers were encouraged to submit the cellphone numbers of their friends in exchange for Pizza Hut coupons, and… Read More

In Fitzhenry v. Career Education Corporation, 2016 WL 792312, at *3 (N.D.Ill., 2016), Judge Darrah held that a TCPA Plaintiff properly pleaded derivative liability in a TCPA class action, and held that a professional TCPA Plaintiff could still be a proper class representative.  Judge Darrah held that the facts as pleaded adequately pleaded derivative liability. Defendants argue that Plaintiff has not… Read More

In Hensarling v. Wells Fargo Bank, N.A., 2016 WL 775950, at *3-4 (E.D.Cal., 2016), Judge Mueller held that a TCPA Plaintiff must plead more that the definition of an ATDS -- it must plead that it was used somehow, as in the existence of pauses or clicks. Here, plaintiffs' TCPA claim can advance only if plaintiffs have alleged sufficient facts… Read More

In Zean v. Fairview Health Services, 2016 WL 740412, at *3 (D.Minn., 2016), Judge Magnuson found that lack of consent was part of a TCPA Plaintiff's pleading obligation, and then found that the Plaintiff's providing his cell phone number constitute express consent to receive telemarketing calls. Elkins found support in the decisions of “one circuit court and many district courts,”… Read More

In Payton v. Kale Realty, LLC,  2016 WL 703869 (N.D. Ill. 2016), Judge Lefkow held that a web service was exempt from the TCPA. Regardless of plaintiffs' self-defeating argument, the undisputed facts establish that VoiceShot provides telecommunication services rather than information services. While plaintiff is correct that VoiceShot's services include data storage to allow users to store contact lists and past… Read More

In O'Shea v. American Solar Solution, Inc., 2016 WL 701215, at *3 (S.D.Cal., 2016), Magistrate Judge Brooks ordered discovery to be produced by the TCPA defendant.   Magistrate Brooks ordered outbound dial call lists to be produced. Specifically, these requests generally concern the total number of call recipients and the total number of phone calls made to them. (See Mot.… Read More