TCPA

Birchmeier, et al. v. Caribbean Cruise Line, Inc., Case No. 12 C 4069 (N.D. Ill. 2014),  here, Judge Kennelly certified two nationwide classes of individuals who received robocalls offering a free cruise trip for participation in a political survey.  The plaintiffs alleged that these robocalls violated the TCPA. Between August 2011 and August 2012, millions of calls were made, and… Read More

In Buchholz v. Valarity, LLC, 2014 WL 5849434 (E.D.Mo. 2014), Judge Adelman clarified his previous ruling on the parties’ summary judgment motions, finding that a TCPA plaintiff can orally revoke consent. This case stems from Defendant's use of an automatic telephone dialing system (“ATDS”) to repeatedly call Plaintiff's cell phone in an attempt to collect a $354 debt Plaintiff owed… Read More

In Schweitzer v. Northland Group Inc., 2014 WL 5782991 (S.D.Fla. 2014), Judge Cohn granted summary judgment to a debt collector on a debtor’s TCPA claim. Citibank asserts that Schweitzer's TCPA claim against it fails because Schweitzer consented to be called in connection with the debt upon which Defendants tried to collect. DE 40–1 at 9–12. Schweitzer bases his TCPA claim… Read More

Oh, the irony. In Shamblin v. Obama for America, 2014 WL 5780458 (M.D.Fla. 2014), Judge Covington allowed a class action to proceed, and not be mooted by a Rule 68 offer, as described as follows: In her August 14, 2014, Second Amended Complaint, Shamblin contends that “despite the prohibition of robocalls to cell phones, and the FCC's reminder that such calls are… Read More

In Shehan v. Wells Fargo Bank N.A., --- F.Supp.3d ----, 2014 WL 5529365 (N.D.Ala. 2014), Judge England declined to stay a TCPA case under the Primary Jurisdiction Doctrine. The primary factors a court considers when determining whether to stay an action based on primary jurisdiction grounds are (1) whether the specialized knowledge of the FCC is needed to answer the… Read More

In Bates v. Dollar Loan Center, LLC, 2014 WL 5469221 (D.Nev. 2014), Judge Dawson scheduled an evidentiary hearing on the question of whether a TCPA class action could be certified for a class consisting of calls placed to borrowers’ references listed by the borrower in the loan application. Defendants argue that the class is overbroad because liability requires both a… Read More

In Palm Beach Golf Center–Boca, Inc. v. Sarris, --- F.3d ----, 2014 WL 5471916 (11th Cir. 2014), the Court of Appeals for the Eleventh Circuit held that the TCPA is a “bounty” statute that affords Article III standing in federal courts even without actual injury. The TCPA provides standing under this theory because it is a “bounty” statute, specifically providing… Read More

In Meyer v. Diversified Consultants, Inc., 2014 WL 5471114 (M.D.Fla. 2014), Judge Toomey found that a “regular user” was the “called party” under Osorio/Breslow. In the Motion to Dismiss, Defendant argues that “[b]ecause plaintiff was not the subscriber of the telephone, she was not the ‘called party’ under the TCPA and Count I of the class action complaint must be… Read More

In Johnston v. USAA Federal Savings Bank, 2014 WL 5439965 (D.Colo. 2014), Judge Babcock found that a TCPA Plaintiff could revoke prior express consent, but that unspecified oral protestations were unsufficient to do so. Written notice setting forth the revocation and the cellular telephone number at issue, however, would be effective to revoke consent. Because Plaintiff expressly agreed that Defendant… Read More

In Marks v. Crunch San Diego, LLC, --- F.Supp.3d ----, 2014 WL 5422976 (S.D.Cal. 2014), Judge Bashant found that defendants' text message system was not an ATDS within the meaning of the TCPA. Defendant Crunch San Diego, LLC (“Crunch”) operates gyms in San Diego, California, as well as in several other states. Compl. ¶ 3, ECF 1. Plaintiff Jordan Marks entered into… Read More

In Miller v. NRA Group, LLC, 2014 WL 5343529 (W.D.Mich. 2014), Judge Carmody granted summary judgment to a debt collector on a Plaintiff’s TCPA claim due to the consent the Plaintiff had provided to the Creditor. Pursuant to the Telephone Consumer Protection Act (TCPA), it is unlawful “to make any call (other than a call made for emergency purposes or… Read More

In Jordan v. Nationstar Mortgage LLC, 2014 WL 5359000 (N.D.Cal. 2014), Judge Orrick lifted a previous stay of a TCPA case under the Primary Jurisdiction Doctrine. On September 4, 2014, I issued an order postponing the decision on Nationstar's motion and staying the case until October 15, 2014. Dkt. No. 48. I did so to allow time for the FCC to respond… Read More

In Luna v. Shac, LLC dba Sapphire Gentlemen's Club,  2014 WL 5324291 (N.D.Cal. 2014), Judge Lloyd denied a Motion to Dismiss a TCPA claim. The facts were as follows. Plaintiff brings this proposed class action against Shac, Club Texting, and CallFire, alleging violations of the TCPA. In January 2014, Plaintiff received an unsolicited text message on his cellular telephone from… Read More

In Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… Read More

In Nigro v. Mercantile Adjustment Bureau, the Court of Appeals for the Second Circuit reversed the District Court's grant of summary judgment on a TCPA claim.  We previously reported on the FCC’s submission to the Second Circuit here (http://www.calautofinance.com/?p=5172) and on the District Court’s Opinion here (http://www.calautofinance.com/?p=3940)   The facts were as follows: Nigro asserts that, while attempting to collect his… Read More

In Knapp–Ellis v. Stellar Recovery, Inc., 2014 WL 5023632 (W.D.Wash. 2014), Judge Martinez declined to stay a TCPA case under the Primary Jurisdiction Doctrine. Upon review of the relevant factors, the Court declines to apply the doctrine of primary jurisdiction at this time. First, the Court is not persuaded that the issues involved in this matter are ones outside the… Read More

In Hartley-Culp v. Green Tree Servicing, LLC, --- F.Supp.3d ----, 2014 WL 5088230 (M.D.Pa. 2014), Judge Munley held that the TCPA imposed vicarious liability on Fannie Mae for the alleged TCPA violations of its servicer. The facts were as follows: Beginning on August 29, 2013, plaintiff received at least twenty-six (26) phone calls from Defendant Resolve Solution Services Corporation (hereinafter… Read More

In Nieto v. Allied Interstate, Inc., 2014 WL 4980376 (D.Md. 2014), Judge Blake granted summary judgment to a TCPA defendant on the basis that no ATDS was used to dial the call. No genuine dispute exists as to whether Allied used an ATDS in calling Nieto. In support of its assertion that it did not use an ATDS, Allied presents an affidavit… Read More

In Bank v. Independence Energy Group LLC, 2014 WL 4954618 (E.D.N.Y. 2014), Judge  Gleeson held that a Plaintiff's holding out his residential telephone line as a "business line" might disqualify it from protection under the TCPA.  Defendants had placed a call to Bank's residential telephone line using an artificial or prerecorded voice that advertised electricity-related services provided by the Defendants. The TCPA,… Read More

In Doucette v. GE Capital Retail Bank, 2014 WL 4955675 (D.N.H. 2014), Judge McCafferty dismissed a TCPA claim on the basis that debt collection calls to a residential line were not protected by the TCPA. GE issued Mrs. Doucette a credit card. She accumulated debt on the card, and then fell behind on her payments. In June of 2013, she “began to… Read More