TCPA

In Hazel's Cup & Saucer, LLC v. Around The Globe Travel, Inc., --- N.E.3d ----, 2014 WL 4106870 (Mass.App.Ct. 2014), the Massachusetts Court of Appeal reversed a trial court's denial of class certification, when the trial court denied class cert because the potential massive exposure under the TCPA if the class was certified outweighed the harm caused. This case presents… Read More

In Birchmeier v. Caribbean Cruise Line, Inc., --- F.Supp.2d ----, 2014 WL 3907048 (N.D.Ill. 2014), Judge Kennelly held that a TCPA class was ascertainable, rejected the Defendant’s argument that, under Soppet, only the subscriber had standing and it could not be determined whether the subscriber answered the cellular telephone. Defendants appear to be making a two-part argument: first, the people… Read More

In Ranwick v. Texas Gila, LLC, 2014 WL 3891663 (D.Minn. 2014), Judge Kyle refused to follow the Mais decision out of Florida. Ranwick seeks to avoid the application of these Rulings by arguing they are erroneous and not binding on the Court. To the contrary, the Hobbs Act reserves to the courts of appeals the “exclusive jurisdiction to determine the… Read More

In Lucas v. Telemarketer Calling From (407) 476-5680, 2014 WL 3845893 (S.D.Ohio 2014), Judge Siegel stayed a TCPA telemarketing case to allow the FCC to rule on Plaintiff’s novel liability theory. It is essential to understand who the current Defendants are in this litigation and their alleged relationship to one another. The Accuardi Defendants consist of three corporate entities and… Read More

In Neptune v. Whetstone Partners, LLC, --- F.Supp.2d ----, 2014 WL 3734549 (S.D.Fla.,2014), the District Court found:  Upon consideration, the Court concludes that Plaintiff's Complaint includes sufficient allegations that support his claim that the calls were autodialed or the messages were prerecorded. Plaintiff alleges that Defendant made approximately forty-five (45) calls to Plaintiff's cellular telephone from November 2013 through April… Read More

In Fischer v. Rent-A-Center, Inc., 2014 WL 3729553 (E.D.Cal. 2014), Judge England ordered a TCPA and Rosenthal Act claim to Arbitration. Judge England found the TCPA claim within the scope of the Arbitration Agreement. Plaintiff opposes Defendant's Motion on the grounds that Defendant has not established that its repeated calls to Plaintiff were in any way related to the loan… Read More

In Bates v. Dollar Loan Center, LLC, 2014 WL 3516260 (D.Nev. 2014), Judge Dawson found that the Defendant’s argument that manual calls were exempt from the TCPA bordered on Rule 11 sanctions. The Court found that the TCPA’s definition of ATDS focuses on “capacity”, not “use”, and all that defendant need have done is dump the numbers into the dialer… Read More

On July 21st, an ex parte was filed with the FCC asking it to interpret the TCPA consistent with Utility Air Regulatory Group v. Environmental Protection Agency, 2014 U.S. LEXIS 4377 (June 23, 2014), where the United States Supreme Court Supreme Court decision supporting the position advanced by Wells Fargo that the term “called party” under the Telephone Consumer Protection Act (TCPA)… Read More

We previously reported on District Court's decision in Nigro v. Mercantile Adjustment Bureau here (http://www.calautofinance.com/?p=3940).  The Plaintiff appealed the District Court's granting summary judgment to the TCPA Defendant, and the Second Circuit Court of Appeals asked for comment from the FCC.  The FCC's response is reflected here. Read More

In Molnar v. NCO Financial Systems, Inc., 2014 WL 3371414 (S.D.Cal. 2014), Magistrate Judge Burkhardt allowed subpoenas to go forward issued by a TCPA defendant to the class Plaintiff's creditors and telephone carriers. The parties' dispute concerns defendant's requests for eight categories of documents from plaintiffs' creditors.FN1 The documents sought are to support defendant NCO's defense that it called plaintiffs to collect… Read More

In Pacleb v. Cops Monitoring, 2014 WL 3101426 (C.D.Cal. 2014), Judge Snyder denied a TCPA Defendant’s Motion to Dismiss, following Soppett. On February 24, 2014, plaintiff Florencio Pacleb filed this putative class action against defendants Cops Monitoring and Does 1 through 10. The operative first amended complaint (“FAC”) asserts claims for: (1) negligent violations of the Telephone Consumer Protection Act… Read More

In Kolinek v. Walgreen Co., 2014 WL 3056813 (N.D.Ill. 2014), Judge Kennelly granted Plaintiff’s Motion to Reconsider the Court’s previous dismissal of Plaintiff’s TCPA claim.  We previously reported on this case here:  http://www.calautofinance.com/?p=4653 . Walgreens moved to dismiss. It argued that Kolinek's complaint established that he had given “prior express consent” for the call within the meaning of the TCPA, and… Read More

In Sartori v. Susan C. Little & Associates, P.A.,--- Fed.Appx. ----, 2014 WL 3302588 (10th Cir. 2014), the Tenth Circuit Court of Appeals – in an unpublished case involving a pro per Plaintiff -- held that a TCPA defendant need not show either that consent was obtained in writing or that the consumer had to consent to be autodialed. Sartori… Read More

In Cabrera v. Government Employees Ins. Co., 2014 WL 2999206 (S.D.Fla. 2014), Magistrate Judge Seltzer tailored a discovery order in a TCPA class action to the revised class definition proposed during the discovery Motion to Compel proceedings. Judge Seltzer made numerous rulings granting and denying discovery, some of which are highlighted below. Request Nos. 5,FN9 33, and 34 seek production… Read More

In Taylor v. Universal Auto Group I, Inc., 2014 WL 2987395 (W.D.Wash. 2014), Judge Strombom rejected the argument that the TCPA requires the Plaintiff to have incurred a cost for the call, but agreed that Plaintiff’s providing his cellular telephone number to a predecessor business constituted consent to be called by the successor business. Tacoma Dodge Chrysler Jeep (Tacoma Dodge)… Read More

In Thomas v. Taco Bell Corp., --- Fed.Appx. ----, 2014 WL 2959160 (9th Cir. 2014), the Court of Appeals for the Ninth Circuit held that Taco Bell could not be held vicariously liable for the TCPA violations of entities it hired to send text messages. Indeed, in a recent declaratory ruling, the FCC expressly agreed with the district judge in… Read More

Two recent California District Court decisions suggest the propriety and effect of pursuing the third party who provided the cellular telephone number in an application that turned out to be subscribed to by another. In Webb v. Healthcare Revenue Recovery Group, LLC, 2014 WL 2967559 (N.D.Cal. 2014), Judge Donato permitted a TCPA defendant to file a third party claim against… Read More

In De Los Santos v. Millward Brown, Inc., 2014 WL 2938605 (S.D.Fla. 2014), Judge Marra found that a TCPA Plaintiff had standing to pursue a TCPA claim despite the fact that the Plaintiff was not charged for the call. Defendant moves to dismiss Plaintiff's complaint for lack of standing, arguing that the TCPA requires a plaintiff to be charged for… Read More

In Penn v. NRA Group, LLC, 2014 WL 2986787 (D.Md. 2014), Judge Bredar granted summary judgment to a debt collector on a Plaintiff’s TCPA claim, stating that the customer’s providing his cellular telephone number to his doctor was the same as providing it to the doctor’s collector once the Plaintiff defaulted on the debt. The undisputed facts show that Penn's… Read More

In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database. Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent.… Read More