TCPA

In Sherman v. Yahoo!, Inc., 2015 WL 8757028, at *4-5 (S.D.Cal. 2015), Judge Curiel found a question of fact on whether Yahoo!'s IM system required human intervention. To support its position, Yahoo relies on district court cases, which have held that where a message must be “triggered” by human intervention, the system is not an ATDS. (ECF No. 134-1 at 8-12… Read More

As subscribers know, industry is challenging the FCC's Omnibus Ruling as exceeding its regulatory and rulemaking powers.  Severson is at the forefront of that litigation, having filed yesterday an amicus brief on behalf of industry in support of industry's petition.  A copy of the petition can be found here and copy of the petitioner's opening brief can be found here.  … Read More

In In re: Life Time Fitness, Inc. TCPA Litigation, 2015 WL 7737335, at *1-2 (D.Minn., 2015), Judge Ericksen gave final approval to a TCPA class action settlement with the following basic terms: In the Agreement, Defendant agreed to make a Total Settlement Payment of at least $10,000,000 and no more than $15,000,000. Defendant's Total Settlement Payment covers Settlement Costs, Cash Awards,… Read More

In Melito v. American Eagle Outfitters, Inc., 2015 WL 7736547, at *4-5 (S.D.N.Y., 2015), Judge Caproni dismissed a TCPA class action against Experian for unsolicited texts sent by American Eagle in connection with a marketing campaign.  First, the Court found no direct liability under the TCPA. The plain language of section 227(b)(1)(A)(iii) imposes liability upon persons that “make” a telephone call… Read More

 Kolinek v. Walgreen, Co., 2015 WL 7450759, at *7-8 (N.D.Ill., 2015), Judge Kennelly overruled objectors to a proposed TCPA class settlement, and their concern that they would receive pennies on the dollar compared to individual TCPA cases.  The decision is a reasonable primer on the terms to include in TCPA class settlement agreements in order to withstand objectors. For one thing, if… Read More

In Jones v. All American Auto Protection, Inc., et. al., 2015 WL 7566685, at *2-3 (D.Nev. 2015), Judge Hicks found a TCPA defendant not vicariously liable under the TCPA. Plaintiffs argue that even though Royal did not physically place the calls itself, Royal is still vicariously liable under the TCPA because AAAP placed the calls on Royal's behalf. The FCC has… Read More

In Telephone Science Corporation v. Hilton Grand Vacations Company, LLC, 2015 WL 7444409, at *2-3 (M.D.Fla., 2015), Judge Mendoza stayed a TCPA fax class action pending the outcome of Spokeo.   As an initial matter, Telephone Science attempts to avoid a stay by distinguishing Spokeo, wherein the core issue is whether the alleged FCRA violation is a sufficient injury-in-fact. Particularly, Telephone Science… Read More

Okay, so the Bank's summary judgment motion was unopposed, but, the Court still got it right and they still won.  In Johnson v. JP Morgan Chase, 2015 WL 7301082, at *2 (S.D.Tex., 2015), Judge Harmon found that a Bank collecting on a mortgage account did not violate the TCPA. On October 31, 2011 Plaintiff expressly asked to be called at that… Read More

In Springer v. Fair Isaac Corp., 2015 WL 7188234, at *5 (E.D.Cal., 2015), the Court addressed what affirmative defenses may be pleaded in a TCPA action.  The Court allowed the affirmative defense of "good faith" to proceed. Defendant's third affirmative defense of reasonable and good faith states: "Defendant's actions were taken in good faith, in reliance upon information provided by its customers… Read More

In Curry v. Synchrony Bank, N.A., 2015 WL 7015311, at *2-3 (S.D.Miss.,2015), Judge Guirola found that a TCPA plaintiff did not plead facts to suggest that an ATDS was used under the TCPA. The Court has found no binding precedent within the Fifth Circuit with respect to the types of allegations required to raise a right to relief above the speculative… Read More

In Ellin v. Credit One Bank, 2015 WL 7069660 (D.N.J. 2015), Judge Wolfson ordered a TCPA case to arbitration. Having concluded that a valid agreement between the parties exists, the Court must next determine whether the dispute at hand falls within the ambit of the Agreement's arbitration clause. In making this determination, “the Court should keep in mind federal policy favors… Read More

In Ghawi v. Law Offices Howard Lee Schiff, P.C., 2015 WL 6958010, at *3-5 (D.Conn., 2015), Judge Arterton denied summary judgment to a TCPA defendant, rejecting the argument that the calls were not to a cellular telephone so long as the debtor told the caller that the calls were routed to a a cell phone. All Defendants argue that Mr. Ghawi's… Read More

In Grind Lap Services, Inc. v. UBM, LLC, 2015 WL 6955484, at *3 (N.D.Ill., 2015), Judge Gettlemen granted summary judgment to a TCPA Blast-Fax defendant, holding that the fax was not an advertisement. According to an order issued by the Commission, “messages whose purpose is to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter… Read More

In St. Louis Heart Center, Inc. v. Athenahealth, Inc., 2015 WL 6777873, at *4-5 (E.D.Mo., 2015), Judge Fleissig stayed a TCPA case after the Plaintiff rejected a Rule 68 offer of judgment based on the Supreme Court's decision in Campbell-Ewald.  After carefully considering the parties' briefs and supplemental authority, and weighing all of the competing interests in this case, the Court… Read More

In Estrella v. LTD Financial Services,  2015 WL 6742062, at *1-3 (M.D.Fla., 2015), Judge Whittemore granted summary judgment to a TCPA defendant who manually dialed calls by a "point-and-click" method. To succeed on his TCPA claim, Plaintiff must establish that Defendant placed calls to his cellular phone using an ATDS or artificial or prerecorded voice. The TCPA prohibits the use of… Read More

In Urban Elevator Service, Inc. v. Stryker Lubricant Distributors, Inc., 2015 WL 6736676, at *1-2 (N.D.Ill., 2015), Judge Shah found granted a Motion to Dismiss a TCPA blast-fax class action against one defendant who claimed that it was not responsible for the sending of the fax at issue. In response, plaintiff argues that—by pleading “Defendants” sent the fax—it did allege Sinopec USA… Read More

In Gossett v. CMRE Financial Services, 2015 WL 6736883, at *1 (S.D.Cal.,2015), Magistrate Judge Stormes followed her previous decision on a motion to compel in Thrasher v. CMRE Financial Services, since the same defendant was involved, and the same counsel were involved as in Thrasher.   The parties presented this court with a discovery dispute regarding CMRE's responses to Gossett's first set of… Read More

In Roberts v. PayPal, Inc., --- Fed.Appx. ----, 2015 WL 6524840 (9th Cir. 2015), the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to PayPal in a TCPA matter based on a finding that the consumer had consented to receive text messages on his cellular telephone. David Roberts appeals the district court’s grant… Read More

In Salerno v. CreditOne Bank, N.A., 2015 WL 6554977 (W.D. N.Y. 2015), Judge Curtin sent a TCPA matter to arbitration, finding that the claim was within the scope of the arbitration clause and that the TCPA did not preclude arbitration. As set forth above, the arbitration clause of Credit One’s Cardholder Agreement is extremely broad, encompassing any dispute relating to… Read More

  In Abella v. Mozea, LLC, , 2015 WL 6599747, at *4 (E.D.Pa. 2015), Judge Dalzell allowed a TCPA text-message class action past the pleading stage, based on allegations that Defendant SAC is a student loan consolidation and forgiveness service that offers assistance to consumers hoping to alleviate their student loan debt burden. Compl. at ¶ 10. Defendant Mozeo is an… Read More