In McBeth v. Credit Protection Ass'n, L.P, 2015 WL 4429324, at *3-4 (M.D.Fla.,2015), Judge Honeywell said that neither party wins on MSJ on the issue of willfulness under the TCPA. Both parties argue that they are entitled to summary judgment with regard to treble damages for “knowing” or “willful” violations of the TCPA. McBeth argues that “knowing” or “willful” should be… Read More
In Reardon v. Uber Technologies, Inc., 2015 WL 4451209 (N.D.Cal., 2015), Judge Tigar dismissed part of a TCPA class action filed against Uber for recruitment texts to potential drivers. Here, Uber argues that the text messages it allegedly sent cannot be said to “constitute telemarketing” or to “include or introduce an advertisement” because the texts do not promote its provision… Read More
In Flores v. Adir International, LLC, 2015 WL 4340020, at *2-5 (C.D.Cal., 2015), Judge Birotte dismissed a TCPA class action with prejudice because he believed Plaintiffs could not plead facts to support their contention that text messages were sent by an ATDS. Defendant moves to dismiss both of Plaintiff's claims under the TCPA for failure to allege that Defendant contacted Plaintiff… Read More
In Miller v. Merchants Credit Adjusters, Inc., 2015 WL 4205159 (D.Neb.,2015), Judge Bataillon allowed a TCPA Plaintiff to amend his complaint to add the principals upon whose behalf a debt was being collected because, as the Court explained, the TCPA permits respondeat superior theories. “While section 227(b) does not contain a provision that specifically mandates or prohibits vicarious liability, we… Read More
In Murray v. Choice Energy, LLC, 2015 WL 4204398 (S.D.Ohio,2015), Judge Black found no direct or vicarious liability for an energy company on whose behalf telemarking calls were allegedly improperly made to the TCPA Plaintiffs. Attached to the crossclaim complaint are a Services Agreement and Turnkey Telemarketing Sales Outsourcing Agreement (“Outsourcing Agreement”) entered into between Choice Energy and Premiere. (Id… Read More
ACA International, the national debt collectors' trade organization, sued the FCC to challenge the FCC's declaratory ruling on the TCPA. A copy of the lawsuit can be found here: ACA Petition for Review 7-13-15. The ACA's press-release described the substance and purpose of their action: ACA International has been at the forefront of a long-time effort to clarify application and… Read More
In Skinner v. Bluestem Brands, Inc., 2015 WL 4135269 (S.D.Miss.,2015), Judge Reeves denied summary judgment to a creditor making calls to collect a debt, rejecting the argument that the credit agreement superseded revocation rights under the TCPA. In 2012, Barbara Skinner opened a line of credit with Fingerhut, a catalog sales company, to purchase goods from Fingerhut. In so doing she… Read More
The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments. For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More
In King v. Time Warner Cable, 2015 WL 4103689 (S.D.N.Y.,2015), Judge Hellerstein refused to stay a TCPA "called party" case under the Primary Jurisdiction Doctrine. “[P]rior express consent by the called party” is a safe harbor against liability under the TCPA, 47 U.S.C. § 227(b)(1)(A), and TWC claims that Luiz Perez, the prior owner of Ms. King's phone number, consented… Read More
In Thrasher v. CMRE Financial Services, Inc., 2015 WL 1138469 (S.D.Cal. 2015), Magistrate Stormes ordered a TCPA class-action defendant to produce outbound call lists, information on use of an ATDS, and ESI related to the putative classmembers’ consent. The Magistrate ordered production of the outbound call lists. The court finds that the outbound call list is reasonably calculated to identify the… Read More
In Hilgenberg v. Elggren & Peterson, 2015 WL 4077765, (D.Utah,2015), Judge Shelby found that a debt collector violated the FDCPA for failing to give meaningful disclosure in its voicemail messages, but did not violate the TCPA because the calls were manually dialed. As to the former, Judge Shelby found that the debt collector failed to give the "tripartite" disclosure: name, company,… Read More
In Boise v. ACE USA, Inc., 2015 WL 4077433, at *3-4 (S.D.Fla.,2015), Judge Cooke found that a TCPA Plaintiff had Article III standing, and that his case was not mooted by a Rule 68 offer. The District Court found that 11th Circuit precedent bound it on the question of Article III standing. Palm Beach Golf Center–Boca, Inc. v. Sarris, 781… Read More
In Imhoff Investment, L.L.C. v. Alfoccino, Inc., 2015 WL 4079438,(6th Cir. 2015), the Court of Appeals for the 6th Circuit found Article III standing for a TCPA class plaintiff, and imposed direct, rather than vicarious, liability on a company on whose behalf an unsolicited fax was sent. The Sixth Circuit Court of Appeals summarized its holding as follows: Plaintiff Avio, Inc. alleges… Read More
In Sacchi v. Care One, LLC, 2015 WL 3966034 (D.N.J.,2015), Judge Wigenton dismissed a TCPA class action when discovery revealed that Plaintiff's counsel was the primary user of the telephone number at issue. On February 3, 2014, Plaintiff, John Sacchi, filed a putative class-action complaint against Defendant Care One alleging that Care One maintained an illegal telephone solicitation practice in violation… Read More
Two articles on the TCPA authored by Severson attorneys were published today in the Consumer Finance Law Quarterly Report as part of the Conference on Consumer Finance's TCPA Symposium. The titles and citations for the articles are Staying TCPA Cases under the Primary Jurisdiction Doctrine, 68 Con. Fin. L. Q. Rep. 312 (2015) and Certification of Class Actions under the Telephone Consumer… Read More
In Charvat v. Travel Services, 2015 WL 3917046, at *4-5 (N.D.Ill., 2015), Judge Wood affirmed the Magistrate Judge's sua sponte imposition of relevancy objections to deny discovery toward a serial TCPA Plaintiff. RCL contends that Charvat's tax returns are relevant to show that he derives substantial income from TCPA litigation and that his motivation for filing this action is financial gain rather… Read More
In Williams v. Bank of America, Nat. Ass'n, 2015 WL 3843251, at *2-4 (D.S.C.,2015), Judge Harwell denied a TCPA Defendant's motion to dismiss. The Court finds Plaintiff has alleged sufficient facts to state a claim under the TCPA. Plaintiff claims Defendant began calling her cellular telephone after January 2013, and upon answering Defendant's calls, Plaintiff heard an automated message telling her… Read More
In Gold Group Enterprises, Inc. v. Bull, 2015 WL 3794719 (D.N.J.,2015), Judge Hammer granted in part and denied in part a Motion to Quash a TCPA subpoena issued to a third party service provider. Petitioner Gold Mobile was not a party to the litigation. According to Gold Mobile's Executive Vice President, Gold Mobile provided various technological platforms and services that allowed companies to… Read More
In Panacci v. A1 Solar Power, Inc., 2015 WL 3750112, at *3 (N.D.Cal., 2015), Magistrate Judge Spero refused to strike TCPA class action allegations at the pleadings stage under Defendant's argument that Plaintiff had pleaded an impermissible "fail-safe" class. Defendants claim that Plaintiff's class definitions create fail-safe classes. . . .Plaintiff argues that its class definitions are not fail-safe because (1)… Read More
In Leon v. Target Corporation, 2015 WL 3738583 (M.D. Pa. 2015), Judge Caputo refused to apply the Primary Jurisdiction Doctrine to stay a TCPA action. On April 17, 2015, Target filed its Answer and Affirmative Defenses to Leon’s Complaint. (Doc. 19.) Target then filed the instant motion to stay this action (Doc. 20) because “the issue of revocation of consent… Read More
