TCPA

In Booth v. Appstack, Inc., 2015 WL 1466247 (W.D. Wash. 2015), Judge Robart re-defined a TCPA-telemarking class definition to avoid fail-safe problems.  In its ascertainability analysis, the District Court redifined the class definition to deal with the fail-safe problem by eliminating the requirement of proof of non-consent by each classmember. Defendants’ final argument is that the class is not ascertainable… Read More

In Anderson v. Security Finance of Idaho, LLC, 2015 WL 1478440 (D. Idaho 2015), Judge Winmill found that manually dialed calls are exempt from the TCPA. The TCPA provides, in pertinent part, that “It shall be unlawful for any person within the United States ... to make any call (other than a call made for emergency purposes or made with… Read More

In Simon v. Healthways Inc, 2015 WL 1568230 (C.D.Cal. 2015), Judge O’Connell refused to stay a TCPA blast-fax class action based on the Primary Jurisdiction Doctrine. To begin. Defendants argue that the Court should stay these proceedings in accordance with the primary jurisdiction doctrine due to the FCC’s recent clarification that solicited faxes must provide opt-out notice. The primary jurisdiction… Read More

In Soulliere v. Central Florida Inv., Inc., 2015 WL 1311046 (M.D.Fla. 2015), Judge Whittemore found that a non-subscriber/regular user of a cellphone had standing to bring a TCPA claim and that there was a triable issue of fact regarding whether there was consent or whether such consent had been revoked. Defendants argue that Plaintiff does not have standing because he… Read More

In Haghayeghi v. Guess?, Inc., 2015 WL 1345302 (S.D.Cal. 2015), Judge Houston refused to strike a TCPA class as an impermissible “fail-safe” class at the pleadings stage. Defendant argues Plaintiff's class definition must be stricken because it is an improper fail-safe class. Defendant maintains the purported class definition seeks to include only those people who received an unauthorized text message,… Read More

In Abdeljalil v. General Elec. Capital Corp., --- F.R.D. ----, 2015 WL 1346850 (S.D.Cal. 2015), Judge Houston certified a TCPA class action.  Plaintiff moved for an order certifying the following class: All persons within the United States who had or have a number assigned to a cellular telephone service, who received at least two calls using an automatic telephone dialing… Read More

In Gonnella v. Delbert Services Corporation, 2015 WL 1299364 (N.D.Ill. 2015), Judge Darrah found that a TCPA Plaintiff could plead, and had pleaded adequately, that she had revoked consent to to be called on her cellular telephone.  The facts pleaded were as follows. The following facts are drawn from Plaintiff's Complaint and are accepted as true for purposes of the Motion to… Read More

In Meyer v. Bebe Stores, Inc., 2015 WL 1223658 (N.D.Cal. 2015), Judge Rodgers declined to stay a TCPA text message class action under the Primary Jurisdiction Doctrine. Generally, plaintiff alleges she provided her cell phone number at a Bebe retail location in connection with a return/purchase transaction in December 2013– receiving no notice that it would be used for advertising purposes–and thereafter received… Read More

In Shupe v. Bank of America NA, 2015 WL 1120010 (D.Ariz. 2015), Judge Zipps affirmed a Magistrate’s recommendation that a plaintiff’s TCPA claim be dismissed because the calls were to land-lines and not cellular telephones. In addition to the foregoing argument, the Plaintiffs assert once again that the TCPA not only prohibits calls to residential lines using artificial or prerecorded… Read More

In Baisden v. Credit Adjustments, Inc., 2015 WL 1046186 (S.D.Ohio 2015), Judge Sargus found that a Hospital’s intake procedures provided sufficient documentationt that a patient consented to be called by an autodialer on his cellular telephone by the Hospital’s affiliate, an anesthesiologist as well as by the anesthesiologist’s debt collection agency. In accordance with this reasoning, this Court finds Plaintiffs'… Read More

In Harnish v. Frankly Co., 2015 WL 1064442 (N.D.Cal. 2015), Judge Davila found that a text-message class action under the TCPA could proceed past the pleading stage. Plaintiff alleged that on May 15, 2014, he received an unsolicited text message from Defendan, where the “from” field of the text message was identified as short code “27367,” and the message read:… Read More

In Alvarado v. Credit Protection Association, L.P., 2015 WL 859109 (M.D.Fla. 2015), Judge Covington rejected the argument made by a TCPA defendant that a “Notice of Representation” from Plaintiff’s counsel was inadmissible as a confidential settlement communication because the letter was relevant to cease-and-desist under the FDCPA and revocation of consent under the TCPA. Although the September Letter contains language… Read More

In Telephone Science Corp. v. Trading Advantage, LLC, 2015 WL 672266 (N.D.Ill. 2015), Judge Guzman found that the TCPA was not limited to consumer protection only; it applied to autodialed calls made to a commercial business' cellular telephones, too. Telephone Science Corporation (“TSC”) brings this case under the Telephone Consumer Protection Act (“TCPA”) seeking relief for telemarketing calls defendants made to… Read More

In In re Capital One Telephone Consumer Protection Act Litigation, --- F.Supp.3d ----, 2015 WL 605203 (N.D.Ill. 2015), Judge Holderman approved a TCPA-class settlement, but reduced Plaintiffs’ counsel’s fee request by approximately 30%. The Settlement Agreement requires Defendants to establish a non-reversionary settlement fund of $75,455,099. (Settlement Agreement § 2.42.) After subtracting notice and administration costs ($5,093,000), Class Counsel's requested… Read More

In Wallace v. Optimum Outcomes, Inc., 2015 WL 627944 (E.D.N.C. 2015), Judge Flanagan entered summary judgment for a TCPA plaintiff who had told a debt collector not to call anymore on one cell phone number but continued to receive calls on another cell phone number. Pertinent to the facts of this case and the earlier one intertwined with it, initiated… Read More

In Walker v. Transworld Systems, Inc., 2015 WL 631390 (M.D.Fla. 2015), Judge Moody denied summary judgment to a TCPA defendant because, he found, the defendant’s use of “Live-Vox” constituted use of an ATDS under the TCPA. TSI is correct that Walker cannot prevail on her TCPA claim if TSI did not use an ATDS to call Walker. The record reflects… Read More

In Daniels v. ComUnity Lending, Inc., 2015 WL 541299 (S.D.Cal. 2015), Judge Hayes properly analyzed the distinction between the TCPA’s regulation of cellular and residential lines. The Moving Defendants contend that Plaintiffs have failed to state a violation of the TCPA for making calls to Plaintiffs' residential telephone lines because the Moving Defendants had an established business relationship with Plaintiffs,… Read More

In Glauser v. GroupMe, Inc., 2015 WL 475111 (N.D.Cal. 2015), Judge Hamilton found that GroupMe's business model did not trigger or violate the TCPA because the software that sent the text was triggered by GroupMe's customers and, therefore, there was "human intervention". This putative class action arises under the Telephone Consumer Protection Act (“TCPA”), which prohibits the making of any call (including… Read More

In Smith v. Markone Financial, LLC, 2015 WL 419005 (M.D.Fla. 2015), Judge Corrigan granted partial summary judgment to a TCPA plaintiff on the basis that a LiveVox dialing system used by the defendant was an ATDS under the TCPA. As it is undisputed that MarkOne called Smith using a LiveVox system, the Court only needs to determine whether that system… Read More

In McKenna v. WhisperText, 2015 WL 428728 (N.D.Cal. 2015), Judge Grewal found that a TCPA plaintiff pleaded himself out of a TCPA claim because there was no allegation of an absence of human intervention. A little over a year ago, Plaintiff Tony McKenna got a text he did not expect from “16502412157.” The text was an invitation to download the… Read More