TCPA

In Harrington v. Roundpoint Mortgage Servicing Corporation, 2016 WL 659331, at *2-4 (M.D.Fla., 2016), the District Court denied a creditor's motion to dismiss a TCPA action, disagreeing with the argument that the TCPA prohibits the imposition of vicarious liability. According to Plaintiff, RoundPoint placed nonemergency calls to his cell phone numbers using an automated dialer or a prerecorded voice without… Read More

In Selou v. Integrity Solution Services Inc., 2016 WL 612756, at *4-6 (E.D.Mich., 2016), Judge Parker found that LiveVox was not vicariously liable for the TCPA violations perpetrated by entities to whom it sold its technology. Plaintiff appears to be alternatively arguing in her response brief that LiveVox can be held vicariously liable for the alleged TCPA violations. (See ECF… Read More

In Banarji v. Wilshire Consumer Credit, 2016 WL 595323, at *3 (S.D.Cal., 2016), Judge Benitez denied class certification in a TCPA class action because the Plaintiff was not typical.  The Plaintiff took out a loan with WCC, listing his cell phone number as ending in 0861 and his email address as “alubanarji@gmail.com”. He also listed his daughter, Plaintiff, as a reference… Read More

In Zilveti v. Global Marketing Research Services, Inc., 2016 WL 613010, at *3 (N.D.Cal., 2016), Judge Chesney allowed a TCPA claim to proceed, despite intervention in the action by the United States of America. Second, contrary to GMRS's argument that Zilveti has failed to state a claim, the TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871,… Read More

In Baisden v. Credit Adjustments, Inc., 2016 WL 561735, at *5-7 (C.A.6 (Ohio),2016), the Court of Appeals for the Sixth Circuit applied the doctrine of intermediary consent to find that a hospitals debt collectors had authority to call the hospital's debtors on their cell phones when the written consent was broad enough to include disclosure of such phone numbers "to others".… Read More

In Yount v. Midland Funding, LLC, 2016 WL 554851, at *7-8 (E.D.Tenn., 2016), Judge Greer granted summary judgment to a TCPA plaintiff who received calls to her cellular telephone by use of an ATDS, even though she was not charged for the calls. There is no dispute of fact that FKSC made the six telephone calls to plaintiff's cellular telephone… Read More

In In re Collecto, Inc., 2016 WL 552459, at *2-4 (D.Mass., 2016), Judge Stearns summarily rejected a challenge to the FCC's authority to define an ATDS. Collecto's summary judgment argument begins with the contention that the court should give no weight whatsoever to the FCC's determination that a predictive dialer is an ATDS for TCPA purposes. According to Collecto, the… Read More

In Brady v. Basic Research, L.L.C., 2016 WL 462916, at *2 (E.D.N.Y., 2016), Judge Feuerstein denied a TCPA Defendant's efforts to tender around Campbell-Ewald.   As Defendants' seek Rule 67(a) permission to deposit funds into court to moot this case arid not to relieve themselves of the burden of administering an asset, and given the Supreme Court's directive that “a would-be… Read More

In Baird v. Sabre, Inc., 2016 WL 424778, at *1 (C.A.9 (Cal.),2016), the Court of Appeals for the Ninth Circuit confirmed that giving your cell number without contrary instructions constitutes consent to be called on it. The TCPA restricts certain calls1 using an automatic dialing system2 or an artificial or prerecorded voice absent “prior express consent.” 47 U.S.C. § 227(b)(1)(A). The… Read More

In Schlotfeldt v. Wells Fargo Home Mortgage, Inc., 2016 WL 406341, at *5 (N.D.Ill., 2016), Judge Gettlemen dismissed a TCPA case because Plaintiff did not plead adequate "use" of an ATDS. As evidenced from the cases cited by each party, courts in this district are split concerning what is required to state a claim under the TCPA. See Martin v. Direct… Read More

In Rivera v. Exeter Finance Corp., 2016 WL 374523, at *3 (D.Colo., 2016), Judge Hegarty declined to stay a TCPA class action pending the outcome of the ACA proceedings in the DC Circuit. Finally, the parties note that other courts have addressed this precise issue with regard to the appeal of the latest FCC Ruling. The cases have gone both directions.… Read More

In Rodriguez v. DFS Services, LLC, 2016 WL 369052, at *2-3 (M.D.Fla., 2016), Judge Moody issued a short stay based on the SCOTUS deciding Spokeo, but said that he would not await the outcome of the TCPA proceedings in D.C. Here, the allegations of injury are likewise sparse, if present at all, even though Rodriguez's complaint does seek actual damages. Compare… Read More

In Jamison v. Esurance Services, Inc., 2016 WL 320646, at *3 (N.D.Tex., 2016), Judge Boyle denied a TCPA Defendant's motion to dismiss. The Report does not specifically list injuries that result from telephone advertising. But parallels to the facsimile advertising injuries can be inferred. For example, cellular telephone users generally incur charges or reduction in usable minutes when they receive… Read More

In Cartrette v. Time Warner Cable, Inc.,  2016 WL 183483, at *4-6 (E.D.N.C., 2016), Judge Flanagan denied a TCPA defendant's summary judgment motion, holding that its subscriber agreement could not prohibit revocation of consent. However, such a contract does not prevent a consumer from revoking her prior express consent pursuant to the TCPA. See Gager, 727 F.3d at 273–74 (“The… Read More

The FCC's response is here: FCC Respondents Brief. Read More

In Stevens-Bratton v. TruGreen, Inc., 2016 WL 155087, at *2 (W.D.Tenn., 2016), Judge Anderson denied a class certification motion on the basis that the Defendant responded to it with a Petition to Compel Arbitration, finding that the Arbitration Clause was not unconscionable.  The unconscionability analysis is not unusual, so much as the procedural posture. TruGreen is a national lawn care… Read More

In Vazquez v. Triad Media Solutions, Inc., 2016 WL 155044, at *4-5 (D.N.J., 2016), Judge Walls struck an affirmative defense in a TCPA text message case asserting EBR, strikes a ruinous penalty affirmative defense, but allows a First Amendment challenge to proceed.  Judge Walls  found EBR not properly asserted in a text message case because "The Third Circuit has held that the… Read More

We previously reported on the Gannon v. Metwork Telephone Services, Inc., decision where the District Court denied class cert in a TCPA class action.  (http://www.calautofinance.com/?p=4181).  In Gannon v. Network Telephone Services, Inc., 2016 WL 145811, at *1 (9th Cir. 2016) (unpublished), the Court of Appeals for the Ninth Circuit affirmed the District Court's denial of class certification. Paul Gannon challenges the district court's denial of… Read More

In McCormick v. Citibank, NA, 2016 WL 107911, at *5 (W.D.N.Y., 2016), Judge Curtin ordered a TCPA case to arbitration, holding that the TCPA itself did not preclude arbitration. Because plaintiff asserts a federal statutory claim, the court must consider “whether Congress evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.” . .… Read More

In Lathrop v. Uber Technologies, Inc., 2016 WL 97511, at *4-5 (N.D.Cal., 2016), Judge Tygar refused to stay the TCPA litigation pending the outcome of the ACA litigation or Spokeo. The Court finds that a stay in favor of the D.C. Circuit's decision in ACA International is not appropriate. . . Moreover, as counsel for Uber acknowledged at the hearing on this motion,… Read More