In Orr v. Credit Protection Ass'n, L.P., 2015 WL 439343 (M.D.Fla. 2015), Judge Corrigan denied summary judgment on the basis that a triable issue of fact existed as to whether a TCPA customer had, in fact, given consent to be autodialed on her cellular telephone. The key issue is therefore whether either Mr. or Mrs. Orr provided prior express consent to call… Read More
In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation. Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of… Read More
In Gensel v. Performant Technologies, Inc., 2015 WL 402840 (E.D.Wis. 2015), Judge Randa stayed a TCPA—wrong party case under the Primary Jurisdiction Doctrine. Lennett Gensel's cell phone provider assigned her a number that was previously assigned to a woman who defaulted on a student loan. Performant Technologies, Inc. repeatedly called that number in an attempt to collect on the debt.… Read More
In Zarichny v. Complete Payment Recovery Services, Inc., --- F.Supp.3d ----, 2015 WL 249853 (E.D.Pa. 2014), Judge Dalzell struck an FDCPA/TCPA class at the pleadings stage because it was an impermissible "fail-safe" class. Because plaintiff's class definitions create impermissible fail-safe classes, we need not consider defendants' second ground for striking her class allegations—that plaintiff is not an adequate class representative because… Read More
In Alvarado v. Bay Area Credit Service, LLC, 2015 WL 224950 (N.D.Cal. 2015), Judge Conti denied a Motion to Stay a TCPA case. Precisely this issue was recently raised in another case in this District. In Nationstar, Judge Orrick considered whether pending FCC decisions counseled a stay of that matter. One such issue before the FCC was “whether dialing equipment… Read More
In Gomez v. Oxford Law, 2015 WL 58766 (M.D.Pa. 2015), Judge Munley held that conflicting language in the TCPA and FDCPA as to when, during a voicemail message, the caller must identify itself can not be exploited to state a claim under the FDCPA. Plaintiff contends section 1692e(5) prohibits two distinct types of conduct: (1) threats to take action that… Read More
In Gesten v. Stewart Law Group, LLC, --- F.Supp.3d ----, 2014 WL 7243330 (S.D.Fla. 2014), Judge Cohn denied a TCPA defendant’s Motion to Dismiss the Plaintiff’s complaint, rejecting the argument that the Plaintiff must plead that she was charged for the call. Defendant first argues that Plaintiff lacks standing to sue under the TCPA because Plaintiff has not alleged that… Read More
In Johnson v. Yahoo!, Inc., 2014 WL 7005102 (N.D.Ill. 2014), Judge Shah denied Yahoo!'s motion for summary judgment on Plaintiff's TCPA case, on the basis that triable issues of fact remained as to whether Yahoo! used an ATDS. Plaintiffs are cell phone subscribers who each received at least two text messages from defendant Yahoo!. The first: personalized text messages originally sent… Read More
In Morse v. Allied Interstate, LLC, --- F.Supp.3d ----, 2014 WL 7004036 (M.D.Pa. 2014), Judge Nealon granted Plaintiffs' Motion for Partial Summary Judgment on a TCPA case, finding that the defendant had used an ATDS. Here, the parties agree there was no human intervention at the time the calls were placed. The calls were made without a human contemporaneously dialing the number… Read More
In Lee v. Gulf Coast Collection Bureau, 2014 WL 6978760 (M.D.Fla. 2014), Judge Bucklew denied summary judgment to a TCPA defendant because, where multiple medical services were given to the Plaintiff, the Defendant's Motion did not connect each call made to each service for which consent was given. Defendant argues that it called Plaintiff's cell phone with Plaintiff's prior express consent,… Read More
In Coniglio v. Bank of America, 2014 WL 6882294 (M.D.Fla. 2014), Judge Kovachevhich refused to set aside a TCPA default judgment because the defendant's allegation that it did not use an ATDS was without merit and because Plaintiff had alleged that any consent given to be autodialed on his cellular telephone was revoked. 2. Bank of America alleges it did not use… Read More
In Ott v. Mortgage Investors Corp. of Ohio, Inc., 2014 WL 6851964 (D.Or. 2014), Judges Steward found that Plaintiffs had adequately pleaded a TCPA class action and allowed it to proceed beyond the pleadings stage. The facts were as follows: Plaintiffs, Kelly Ott, Nancy Luebben, and Benjamin Gesler, filed this class action against defendants for violations of the Telephone Consumer Protection… Read More
In Keim v. ADF Midatlantic, LLC, --- Fed.Appx. ----, 2014 WL 6734829 (11th Cir. 2014), the Court of Appeals for the 11th Circuit held that a Rule 68 Offer did not moot a TCPA class action plaintiff's claims. We have today issued our opinion in Jeffrey Stein, D.D.S., M.S.D., P.A. v. Buccaneers Ltd. Partnership, ––– F.3d ––––, No. 13–15417 (11th Cir.––––, 2014).… Read More
In Toney v. Quality Resources, Inc., --- F.Supp.3d ----, 2014 WL 6757978 (N.D.Ill. 2014), Judge St. Eve found that the Defendant’s efforts to “upsell” the debtor on other products (so-called “dual purpose” calls) exceeded the limited consent the consumer had given to be called on her cellular telephone. The facts were as follows: Toney alleges that on December 8, 2012,… Read More
In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett. At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute's definition of an automatic telephone dialing system. See Marks v. Crunch San Diego,… Read More
In Warnick v. DISH Network LLC, 2014 WL 6680407 (D.Colo. 2014), Judge Daniel made permanent what he previously made only temporary: that Plaintiff could not plead a recursive “fail-safe” TCPA class consisting of recipients of auto-dialed calls to their cellphones who had not provided prior express consent. Plaintiff argues, however, that he has addressed concerns about the TCPA Tracker class… Read More
In Maraan v. Dish Network, L.L.C., 2014 WL 6603233 (S.D.Ohio 2014), Judge Spiegel, found that a subscriber to a cellular telephone service had standing under the TCPA even if the subscriber was not the party who actually answered the call. On summary judgment, however, Defendant has reversed course on this issue, and now maintains that Plaintiff, because he is merely… Read More
In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More
We previously reported on the Taylor case’s holding that a TCPA plaintiff need not plead that they incurred a cost as a result of the TCPA-offending call. (http://www.calautofinance.com/?p=5147). This week, however, in Taylor v. Universal Auto Group I, Inc., 2014 WL 6654270 (W.D.Wash. 2014), Judge Strombom found that Plaintiff had met all of the usual requirements of FRCP 23 to… Read More
In Ybarra v. Dish Network LLC, 2014 WL 6085292 (N.D.Tex. 2014), Judge O’Connor granted summary judgment to a TCPA Plaintiff without requiring the Plaintiff to demonstrate the use of an ATDS, so long as the Plaintiff could show that a pre-recorded voice was used. The TCPA prohibits calls using an ATDS or a prerecorded voice. 47 U.S.C. § 227(b)(1)(A). DISH… Read More
