TCPA

A copy of the FCC's Release can be found here:  FCC TCPA News Release.  A transcript of the proceedings and the panel's statements can be found here:   FCC TCPA Transcript 6.18.15 Read More

In Sook v. Nielsen Company (US), LLC, 2015 WL 3688781, at *1-2 (M.D.Fla.,2015), Judge Kovachevich stayed a TCPA case under the Primary Jurisdiction Doctrine. On February 9, 2015, Plaintiff filed its complaint, alleging that Defendant sent Plaintiff thousands of unwanted text messages in violation of 47 U.S.C. § 227, The Telephone Consumer Protection Act (“TCPA”). (Doc. 1 at 1). Specifically, Count… Read More

In Lees v. Anthem Ins. Companies Inc., 2015 WL 3645208, at *1 (E.D.Mo.,2015), Judge Limbaugh gave final approval to Anthem's settlement of a TCPA class action, described as follows: The Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) prohibits making automated telephone calls to cellular telephones without the “prior express consent” of the recipient. Plaintiff alleges that defendant… Read More

In Gillard v. Receivables Performance Mgmt., LLC, No. CIV.A. 14-02392, 2015 WL 3456751, at *6 (E.D. Pa. June 1, 2015), Judge Pappert largely denied both parties' claims for relief under the TCPA. RPM moves for summary judgment in its favor on the same issue. (Def.'s Mem. Supp. Mot. Summ. J. at 10, Doc. No. 45–1). It also moves for summary judgment… Read More

In Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3466213, at *3-4 (N.D. Cal. June 1, 2015) amended at Derby v. AOL, Inc., No. 15-CV-00452-RMW, 2015 WL 3477658 (N.D. Cal. June 1, 2015), Judge Whyte dismissed Plaintiff's TCPA case on a Motion to Dismiss. This case arise arises out of three unsolicited text messages that plaintiff received through defendant's AOL Instant Messenger (“AIM”) service,… Read More

The FCC today announced its intention to issue its proposed declaratory ruling on the TCPA.  A copy of the announcement is here. Read More

In Balschmiter v. TD Auto Finance LLC, 2015 WL 2451853E.D. Wis. 2015), Judge Stadtmueller denied Plaintiff’s request to use a classmember list provided under a protective order to give pre-trial notice to putative classmembers after the Court (and 7th Circuit) already had denied class certification. The Court will not expend its resources, limited as they are, elaborating on the defendant’s… Read More

In Hofer v. Synchrony Bank,  2015 WL 2374696, at *2-4 (E.D. Mo.  2015), Judge Perry declined to stay a TCPA case based on the Primary Jurisdiction Doctrine.  The Court found that the question of whether an ATDS was used did not justify staying the Action. The FCC has already considered the first question proffered by Synchrony at least twice. See Prater… Read More

In Taylor v. Universal Auto Grp. I, Inc.,  2015 WL 2406071, at *4-5 (S.D. Ohio 2015), Judge Black affirmed a Magistrate's order compelling disclosure, pre-certification, of TCPA class members' names and addresses. OneCommand's primary argument is that the requested information is not relevant because the underlying action is in the pre-certification stage and that Plaintiff could only use this information to… Read More

In Story v. Mammoth Mountain Ski Area, LLC, 2015 WL 2339437 (E.D. Cal. 2015), Judge Mendez applied the Primary Jurisdiction Doctrine to stay a TCPA class action arising out of a ski-resort purportedly leaving pre-recorded advertisements on the putative class members' cellular telephones. In 2012, the FCC issued a Report and Order entitled “In the Matter of Rules and Regulations Implementing the… Read More

We previously reported on the Gomez v. Campbell-Ewald matter (http://www.calautofinance.com/?p=5343), wherein the 9th Circuit found that a consumer's failure to accept advertiser's offer of judgment did not render action moot.  Today, the SCOTUS granted cert.  Campbell-Ewald Company v. Gomez, 2015 WL 246885-, -- S.Ct. ---, 83 USLW 3637 (2015).  The Petition for Cert. offered 3 potential issues: 1.Whether a case… Read More

In Savage v. Citibank N.A., 2015 WL 2214229 (N.D. Cal. 2015), Judge Freeman denied a petition to compel arbitration of a TCPA lawsuit because the lawsuit did not fall within the terms of the arbitration clause. Defendants contend that Plaintiff’s claims in this lawsuit—premised upon collection activity in connection with a Macy’s card issued by DSNB—fall within the scope of… Read More

In Smith v. NCO Financial Systems, Inc.,  2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per's TCPA complaint. Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff's exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the… Read More

In Kristensen v. Capital One Bank, N.C., 2015 WL 2151751 (C.D.Cal. 2015), Judge Gee granted a stay of a TCPA re-assigned number case under the Primary Jurisdiction Doctrine. The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. Clark v. Time Warner… Read More

In Wilcox v. Green Tree Servicing, LLC, 2015 WL 2092671 (M.D. Fla. 2015), Judge Bucklew denied a TCPA Plaintiff’s summary judgment motion on the basis that Plaintiff had not adequately proved that Defendant used an ATDS. Defendant argues that the evidence shows that its agents manually dialed Plaintiff’s cell phone for all of the calls at issue. In support of… Read More

In Modica v. Green Tree Servicing, LLC., 2015 WL 1943222 (N.D. Ill. 2015), Judge Zagel granted summary judgment to a mortgage company on a TCPA claim because no ATDS was used.  The facts were as follows: Defendant employed two methods to place outgoing calls to Plaintiffs from October 2011 to April 24, 2012:(1) Aspect Unified IP Version 6.6 Service Pack 2 (“Dialer”),… Read More

In Alvarado v. Credit Protection Ass’n, L.P, 2015 WL 1815863 (M.D. Fla. 2015), Judge Covington held that, although a debtor consented to have his cell phone called when he provided the number in connection with the transaction creating the debt, a triable issue of fact existed as to whether a “pre-suit demand letter” constituted revocation of consent. Here, when Plaintiff… Read More

In Spokeo v. Robins,742 F.3d 409 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit found that FCRA itself provided Article III standing, even if the Plaintiff could prove no actual damage.  Spokeo contends, however, that Robins cannot sue under the FCRA without showing actual harm. But the statutory cause of action does not require a showing of… Read More

In Bayat v. Bank of the West, 2015 WL 1744342 (N.D. Cal. 2015), Judge Chen granted final approval to a TCPA class action settlement.   The settlement class consisted of “All persons within the United States to whom, on or after November 2, 2008 through [July 22, 2014], a non-emergency telephone call was attempted by Bank of the West, or any… Read More

In Mogadam v. Fast Eviction Service, 2015 WL 1534450 (C.D. Cal. 2015), Judge Selna found use of an ATDS and a class action under the TCPA adequately pleaded. No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature… Read More