Severson partner Eric Troutman evaluates a series of ATDS decisions involving emerging tech companies that have been issued after the FCC’s new omnibus TCPA ruling. https://casetext.com/posts/rivals-defeat-tcpa-claims-on-home-turf-as-yahoo-takes-big-loss-in-the-third-circuit Read More
In Ramsey v. General Motors Financial Co., Inc., 2015 WL 6396000, at *1-2 (M.D.Tenn.,2015), Judge Campbell dismissed the Defendant's counterclaim for the debt in a TCPA action. Similarly, Plaintiff contends that Defendant's state law claim can be resolved without any consideration of whether Defendant violated the TCPA. The determination of whether Plaintiff was in default under the Contract in no way… Read More
In Connector Castings, Inc. v. Joseph T. Ryerson & Son, Inc., 2015 WL 6431704, at *2-3 (E.D.Mo., 2015), Judge Limbaugh allowed a TCPA class action past the pleadings stage. He rejected the Defendant's argument that a Rule 68 offer mooted the class. Plaintiff contends that the offer of judgment was invalid insomuch as plaintiff had on file a motion to… Read More
In Dominguez v. Yahoo, Inc., 2015 WL 6405811, at *2-3 (C.A.3 (Pa.),2015), the Court of Appeals for the Third Circuit revived a TCPA class action against lawsuit, where Yahoo! had prevailed in the lower court on the basis that it did not have an ATDS. The only issue on appeal is whether a reasonable trier of fact could find Yahoo's system… Read More
In Gensel v. Performant Technologies, Inc., 2015 WL 6158072, at *2 (E.D.Wis.,2015), Judge Randa stayed a TCPA case, that was previously stayed under the Primary Jurisdiction Doctrine, because it was likely that the D.C. Circuit will overrule the FCC on the ATDS issue. Performant pins its hopes on the expectation that the appellate courts, particularly the Seventh Circuit, will overrule… Read More
In Ybarra v. Dish Network, L.L.C., 2015 WL 6159755, at *4 (C.A.5 (Tex.),2015), the Court of Appeals for the Fifth Circuit held that the TCPA was not violated when a dialer system designed to leave pre-recorded messages only when a "live" voice is reached did not leave any messages, but disconnected, when it reached an answering machine. The TCPA makes… Read More
In Shamblin v. Obama for America, 2015 WL 6123731, at *1-2 (M.D.Fla., 2015), Judge Covington declined to grant class-wide injunctive relief under the TCPA since she previously denied class certification in the Action. Shamblin seeks an injunction barring the remaining Defendants from any future violations of the TCPA, as follows: "Obama for America and DNC Services Corp., and their respective… Read More
In Freyja v. Dun & Bradstreet, Inc., here, Judge Fischer granted summary judgment to a defendant in a TCPA case because human intervention involved in the call disqualified the call as being from an ATDS. The undisputed facts demonstrate that Plaintiff was not called from an ATDS. An ATDS is a piece of “equipment which has the capacity to (a) store or… Read More
In Williams v. T-Mobile USA, Inc., 2015 WL 5962270, at *2 (N.D.Cal., 2015), Judge White held that Plaintiff must plead more than conclusory allegations regarding use of an ATDS. Williams argues that her allegations that T-Mobile made a “barrage” of calls and that the “frequency and pattern of the calls” provide the necessary factual support to conclude that the calls were made… Read More
In Leyse v. Bank of America Nat. Ass'n, 2015 WL 5946456, at *7 (C.A.3 (N.J.),2015), the Court of Appeals for the Third Circuit said that a roommate who was the regular user of a cell phone was afforded standing by the TCPA. From this evidence, it is clear that the Act's zone of interests encompasses more than just the intended… Read More
In Al-Zaharnah v. Innovative Loan Servicing Company, 2015 WL 5897685, at *2 (M.D.Fla., 2015), Judge Sneed once again denied a TCPA Plaintiff a site inspection request. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet his burden of establishing that Defendant used… Read More
In Bill v. NCO Financial Systems, Inc., 2015 WL 5715402, at *2 (M.D.Fla., 2015), Judge Sneed denied a TCPA Plaintiff discovery of a site inspection of defendant's facilities. Plaintiff contends that a site inspection of Defendant's call center to examine the equipment used by Defendant in making calls to consumers is necessary for Plaintiff to meet her burden of establishing that… Read More
In Nussbaum v. Diversified Consultants, Inc., 2015 WL 5707147, at *3 (D.N.J.,2015), Judge Thompson declined to stay a TCPA claim merely because industry had appealed to the D.C. Circuit the FCC's order on what constitutes an ATDS under the TCPA. With respect to the third factor, the Court considers whether a stay would simplify the issues and the trial of the case.… Read More
In Bee, Denning, Inc. v. Capital Alliance Group, 2015 WL 5675798, at *1-2 (S.D.Cal.,2015), Judge Bashant certified fax-blast and cell-phone classes arising from a telemarketing scheme that included unsolicited faxes followed by automated calls to cellular telephones. The facts were as follows: The allegations at the heart of this case involve a familiar feature of the modern business and consumer landscape-telemarketing.… Read More
In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate's ruling on summary judgment in favor of a TCPA defendant. In his objections, plaintiff takes issue with the magistrate judge's determination that SkyCreek did not utilize an ATDS when making calls to plaintiff's telephone. The court does not reach the merits of… Read More
In Walker v. Credit Protection Ass'n, LP, 2015 WL 5522000, at *3-4 (M.D.Fla.,2015), Judge Sneed refused a TCPA Plaintiff's efforts to obtain a site inspection of the Defendant's call center and telephone system. Specifically, the Notice of Site Inspection requested "[t]hat Defendant permit Plaintiff to enter Defendant's Call Center and to inspect and to photograph, examine Defendant's telephone system and… Read More
In Derby v. AOL, Inc., 2015 WL 5316403, at *4-6 (N.D.Cal., 2015), Judge Whyte dismissed a TCPA claim challenging AOL's AIM and the Plaintiff's receipt of three unsolicited text messages that plaintiff received through defendant's AOL Instant Messenger (“AIM”) service, and a confirmation text from AOL to plaintiff following plaintiff's request to block future messages from AIM. Judge White found that a… Read More
In McKenna v. WhisperText, 2015 WL 5264750, at *1 (N.D.Cal., 2015), Judge Grewal dismissed Plaintiff's TCPA class action because no TCPA was used. The facts were as follows: Defendants WhisperText, LLC, and WhisperText, Inc. operate an anonymous sharing service called Whisper. The idea is to allow users to share their ideas, hopes and fears without attribution. Like many services accessed primarily… Read More
In Peters v. Credit Protection Association, 2015 WL 5216709, at *5-6 (S.D.Ohio, 2015), Judge Marbley found that a TCPA Class Action defendant's Rule 68 offer was inadequate and did not moot the class action anyway. And, Judge Marbley refused to stay the case pending the outcome of the Supreme Court's case in Campbell-Ewald. Such is a merits-based argument regarding the type of relief… Read More
In Watkins v. Synchrony Bank, 2015 WL 5178134, at *3-4 (M.D.Pa.,2015), Judge Brann declined hear a counter-claim filed in response to a TCPA claim. Applying the “logical relationship” test to the instant counterclaim, this Court finds that Defendant's breach of contract claim is not logically related to Plaintiff's federal TCPA claim. This conclusion is reached based on an analysis of case… Read More
