TCPA

In Wasvary v. WB Holdings, LLC, 2015 WL 5161370, at *6-7 (E.D.Mich., 2015) , Judge Cox found that a TCPA class action plaintiff could not avoid a Rule 68 "pick-off" offer by filing a premature, pre-emptive Motion for Class Certification. In cases involving statutory damages that are small in amount, like TCPA cases, Defendants often attempt to “pick off” the named… Read More

In Ossola v. American Express Company, 2015 WL 5158712 (N.D. Ill. 2015), Judge Cole found that a TCPA plaintiff, whose liability theory against a Defendant proceeded solely based on vicarious liability, was not entitled to "call data" from that Defendant because it was irrelevant since since that Defendant did not place any calls.  Instead, the discovery appeared to be improperly tailored… Read More

In Yaakov v. Varitronics, LLC, 2015 WL 5092501, at *1 (D.Minn.,2015), Judge Montgomery stayed a TCPA-fax class action pending the outcome of the SCOTUS' decision in Campbell-Ewald.  The facts were as follows. This putative class action stems from eight unsolicited fax advertisements Bais Yaakov received between November 2013 and February 2014. See Compl. [Docket No. 1] ¶ 10; Ex. A (the “Fax… Read More

In Blair v. CBE Group, Inc. 2015 WL 5086375 (S.D.Cal. 2015), Judge Anello denied certification of a TCPA class defined as "Skip Trace Class: All persons within the United States to whom CBE placed a call to a cellular telephone at a number that CBE did not obtain either prior express consent from the debtor, and that call was made using… Read More

In Soular v. Northern Tier Energy LP, 2015 WL 5024786, at *8-9 (D.Minn.,2015), Judge Nelson denied a Motion to Dismiss because the matters raised by the Defendant regarding an ATDS and consent were outside the pleadings.  That discussion of the case won't be otherwise summarized here.  But, Judge Nelson denied the Defendant's Motion to Strike, finding both that it was… Read More

In Gaza v. LTD Financial Services, L.P., 2015 WL 5009741, at *4 (M.D.Fla.,2015), Judge Moody granted summary judgment to a TCPA defendant whose calls were only dialed manually. With respect to the ATDS definition, the FCC, in its July 10, 2015 Declaratory Ruling and Order noted: "We reaffirm our previous statements that dialing equipment generally has the capacity to store… Read More

In Huricks v. Shopkick, Inc., 2015 WL 5013299, at *1 (N.D.Cal., 2015), Judge Chesney granted summary judgment to a TCPA defendant based on the FCC's 2015 order. In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege that Shopkick “operates a shopping application for Apple and Android devices that urges consumers to purchase retail goods for sale close to… Read More

In Craddock v. Beats Music, LLC, 2015 WL 4960041 (N.D.Ill., 2015), Judge Lefkow ordered a TCPA class action to arbitration arising from texts received by a consumer when she signed up for a Beats Music trial offer. Craddock's claims are based on her allegation that Beats Music sent her a text message, through AT & T Mobility, LLC, alerting her to… Read More

In Bais Yaakov of Spring Valley v. ACT, Inc., 2015 WL 4979406, at *3 (C.A.1 (Mass.),2015), the First Circuit Court of Appeals held that a TCPA defendant can not moot a class action by picking off the named plaintiff through a Rule 68 offer. Against this background, ACT advances a nifty stratagem for defeating motions for class certification: offer only the… Read More

In Murphy v. DCI Biologicals Orlando, LLC, 2015 WL 4940800, at *1 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit affirmed the FCC's rulings on what constitutes prior express consent in a TCPA/debt collection case. Mr. Murphy alleged that DCI stored donor record information on a commercial database it operated and that it provided the donor information to third… Read More

In Hill v. Homeward Residential, here, the Court of Appeals for the Sixth Circuit rejected the contention that consent to be called on one's cellular telephone can only be given at the inception of the transaction and not during the life of the transaction.  "The Telephone Consumer Protection Act prohibits companies from making automated calls to a person’s cellphone without… Read More

In Luna v. SHAC, LLC dba Sapphire Gentlemen's Club, here, Judge Lloyd granted summary judgment to a TCPA defendant who was accused of violating the TCPA for sending text messages to customers. Shac operates the Sapphire Gentlemen’s Club in Las Vegas, Nevada. Shac engaged CallFire, a third-party mobile marketing company, to provide a web-based platform (here, EXTexting.com) for sending promotional text messages to… Read More

In Savage v. Citibank N.A., 2015 WL 4880858 (N.D.Cal., 2015), Judge Freeman addressed whether a Rosenthal Act/TCPA Defendant's affirmative defenses should be stricken due to factually inadequate pleading. Defendants' sixth affirmative defense of unclean hands, eighth affirmative defense of laches, ninth affirmative defense of waiver, tenth affirmative defense of estoppel, eleventh affirmative defense of justification, and twelfth affirmative defense of ratification… Read More

In Rouse v. Delta Air Lines, Inc., 2015 WL 4636726 (D.Minn.,2015), Judge Magnuson held that a TCPA Text-Message Plaintiff survived a Motion to Dismiss on whether the Complaint adequately pleaded use of an ATDS.  The facts were as follows: In late 2014, Plaintiff Kevin Rouse received a text message on his personal cell phone from Defendant Delta Air Lines, asking… Read More

The Firm's Eric Troutman expounds on the FCC's recent TCPA Ruling, and the breadth of its definition of an ATDS:  TCPA Article on Smartphones as AutoDialers. Read More

In Ikuseghan v. MultiCare Health System, 2015 WL 4600818, (W.D.Wash.,2015), Judge Settle found that the TCPA affords Article III standing to litigants, and certified a TCPA class.  As to standing, Judge Settle found: MultiCare first argues that Ikuseghan lacks Article III standing to bring this suit. . . . In addition to economic injury, Ikuseghan alleges that MultiCare violated her statutory rights… Read More

In Loebenstein v. Chase Bank, 2015 WL 4478136  (D.N.J.,2015), Judge Arpert declined to stay a TCPA case filed by the Plaintiff that sought relief under the TCPA for “wrong party calls”, which  arise when a company obtains the telephone number at issue from one of its customers who, after providing the number to the company, and unbeknownst to the company, ceases use… Read More

In Valladares v. Blackboard, Inc., 2015 WL 4466839  (N.D. Ill. July 21, 2015), Judge Der-Yeghiayan denied a request to stay a TCPA case because the petition pending before the FCC differed from the issues. in the case. Defendants request in the alternative that the court stay the instant action, pending a decision by the FCC. Defendants argue that they have petitioned… Read More

In Keating v. Peterson's Nelnet, LLC, 2015 WL 4430355 (6th Cir. 2015), the Court of Appeals for the Sixth Circuit affirmed summary judgment in favor a TCPA defendant on whose behalf unauthorized text messages were sent.  First, the Sixth Circuit found that texts were "calls" under the TCPA. Neither the plaintiff nor the defendants contest the inclusion of text messages… Read More

In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations.  Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More