In Lynn v. Monarch Recovery Management, Inc.--- Fed.Appx. ----, 2014 WL 4922451 (4th Cir. 2014), the 4th Circuit Court of Appeals found that a debt collector could not rely on the TCPA's land-line/EBR exemption where the debtor was charged for the call. The TCPA specifically prohibits “mak[ing] any call ... using any [ATDS] or an artificial or prerecorded voice ... to any… Read More
In Abdullah v. Ocwen Loan Servicing, Inc., 2014 WL 4851760 (M.D.Ga. 2014), Judge Royal found that auto-dialed loan servicing calls to a residential land-line were not actionable under the TCPA. Plaintiff alleges Ocwen violated 47 U.S.C. § 227(b)(1)(B) of the TCPA by using an automated telephone dialing system to call her telephone line and leave recorded messages without permission. Ocwen's telephone calls,… Read More
In McKenna v. WhisperText, 2014 WL 4905629 (N.D.Cal. 2014), Judge Grewal required a TCPA plaintiff to plead more as to whether an ATDS was used, and refused to stay the case based on the Primary Jurisdiction Doctrine. Plaintiff Tony McKenna filed a class action complaint pursuant to the federal Telephone Consumer Protection Act, 47 U.S.C. 227(b)(1)(A)(iii) (TCPA). McKenna brought suit against Defendants… Read More
In Mais v. Gulf Coast Collection Bureau, 2014 WL 4802457 (11th Cir. 2014), the Court of Appeals for the 11th Circuit reversed the District Court's decision holding that it was not bound by the FCC's determination of "prior express consent" under the TCPA. The 11th Circuit found that "The district court exceeded its jurisdiction by declaring the 2008 FCC Ruling to… Read More
In Brenner v. American Educ. Services, --- Fed.Appx. ----, 2014 WL 4783216 (8th Cir. 2014), the Court of Appeals for the 8th Circuit remanded a TCPA case to require the District Court to determine whether the consumer revoked prior express consent. Joshua Seth Brenner appeals the district court's adverse grant of summary judgment in his action against American Education Services (AES),… Read More
In Pickens v. American Credit Acceptance, LLC, 2014 WL 4662512 (S.D.Ala. 2014), Judge Nelson stayed a TCPA case under the Primary Jurisdiction Doctrine. Primary jurisdiction doctrine applies “whenever enforcement of [a] claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body.” United States v. W. Pac. R.R. Co., 352 U.S.… Read More
In Wahl v. Stellar Recovery, Inc., 2014 WL 4678043 (W.D.N.Y. 2014), Judge Geraci stayed a TCPA case under the Primary Jurisdiction Doctrine. Plaintiffs oppose the stay request, arguing that (1) the doctrine of “primary jurisdiction” assumes the issue presented one of first impression and is inapplicable in this case where on multiple occasions in the past the FCC has determined that predictive… Read More
In Gomez v. Campbell–Ewald Co., --- F.3d ----, 2014 WL 4654478 (9th Cir. 2014), the Court of Appeals for the 9th Circuit reversed the district court's summary judgment in favor of a TCPA defendant marketing company. The message was the result of collaboration between the Navy and the Campbell–Ewald Company,FN1 a marketing consultant hired by the Navy to develop and execute a… Read More
In Prater v. Medicredit Inc., --- F.Supp.3d ----, 2014 WL 4652942 (E.D.Mo. 2014), Judge Collin refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because Swope already decided the ATDS issue. [T]o the extent Defendants argue that a stay should be granted because the pending petitions “ask[ ] the FCC to declare that predictive dialers do not fall under the TCPA's… Read More
In Miller v. 3G Collect, LLC, 2014 WL 4634966 (E.D.Pa. 2014), Judge Buckwalter retained jurisdiction in a TCPA case over the underlying debt itself. Thus, unlike the TILA and FDCPA, the explicit terms of the TCPA make the giving of prior express consent by the debtor to the debt collector an absolute defense to liability. See Baird v. Sabre Inc., 995… Read More
In Hartley–Culp v. Credit Management Co., 2014 WL 4630852 (M.D.Pa. 2014), Judge Blewitt rejected a TCPA defendant's request for a stay/bifurcation of discovery. Defendant CMC seeks the Court to bifurcate discovery into two phases with the first phase limited to the issue of whether Plaintiff expressly consented to receiving calls on her cell phone. Defendant CMC maintains that if it proves… Read More
In Stemple v. QC Holdings, Inc., 2014 U.S. Dist. LEXIS 125313 (S.D.Cal. 2014), Judge Bashant certified a TCPA Class comprised of "All persons whose 10-digit cellular telephone numbers with a California area code were listed by an account holder in the Employment and/or Contacts fields of a California customer loan application produced to [Defendant], which were called by [Defendant] using an [ATDS]… Read More
In Olney v. Job.com, 2014 WL 4629062 (E.D.Cal. 2014), the Plaintiff filed a TCPA class action based on calls he received after signing up for Defendant's resume service. The Plaintiff and Defendant entered into a Discovery Stipulation allowing the parties to designate certain information as "Confidential". The Defendant produced, and marked confidential, three recordings of telephone conversations with the Plaintiff. As a… Read More
In Zyburo v. NCSPlus, Inc., --- F.Supp.3d ----, 2014 WL 4536932 (S.D.N.Y. 2014), Judge Rakoff granted class certification in a TCPA class action. This is a putative class action brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227 et seq., which prohibits certain kinds of telephone solicitations without the recipient's consent. Plaintiff alleges that the defendant repeatedly… Read More
In Leyse v. Bank of America, 2014 WL 4426325, (D.N.J. 2014), here, Judge Wiggington found that a roommate who answered a call intended for the other roommate who was the defendant's debtor lacked standing to sue under the TCPA. In line with that reasoning, Judge Koeltl found that “while the prerecorded message did not address Dutriaux by name and it was Leyse who… Read More
In Porter v. Dollar Financial Group, Inc., 2014 WL 4368892 (E.D.Cal. 2014), Judge Shubb found the allegations of a TCPA claim to be outside of an Arbitration Agreement because the complaint alleged that the calls placed did not relate to the subject of the contract that contained the arbitration clause. On December 29, 2011, plaintiff signed a Deferred Deposit Loan Note in… Read More
In Holcombe v. Credit Protection Ass'n, LP, --- F.Supp.2d ----, 2014 WL 4252277 (M.D.Ga. 2014), Judge Royal refused to stay a TCPA case based on the primary jurisdiction of the FCC. Here, Defendant admits in its Answer that it uses a predictive dialer but alleges that the equipment lacks the “present capacity” to store or produce random or sequential numbers. Defendant… Read More
In Lambert v. Buth–Na–Bodhaige, Inc., 2014 WL 4187250 (E.D.Cal. 2014), Chief Judge England stayed a TCPA case under the Primary Jurisdiction Doctrine. However, as demonstrated by the Coalition of Mobile Engagement Providers' (“CMEP”) petition now pending before the FCC, ECF No. 12–2, Exh. 5), “express consent” provided by a customer prior to October 16, 2013, could obviate the need to… Read More
In Lee v. loanDepot.com, LLC, 2014 WL 4145504 (D.Kan. 2014), Judge Humphreys stayed a TCPA case under the Primary Jurisdiction Doctrine while the FCC addresses what an ATDS is. Defendant contends that three petitions currently pending before the FCC specifically address the interpretation of “capacity” as stated in the TCPA. In all three petitions, the filing parties (Communication Innovators, YouMail,… Read More
In Hill v. Homeward Residential, Inc., 2014 WL 4105580 (S.D.Ohio 2014), Judge Frost found that a Plaintiff’s claim that he did not remember calling Defendant, combined with Defendant’s lack of evidence of how it obtained Plaintiff’s number, was sufficient to overcome Defendant’s summary judgment on the basis that Plaintiff had given “prior express consent” to be called on his cellular… Read More
