In Morse v. Allied Interstate, LLC, 2014 WL 2916480 (M.D.Pa. 2014), Judge Nealon denied a Motion to Stay a TCPA under the Primary Jurisdiction Doctrine because the matters were not appropriate for submission to the FCC. Defendant requests this matter be placed on hold because the allegations of the complaint turn on two issues currently pending before the Federal Communications… Read More
In Buchholz v. Valarity, LLC, 2014 WL 2882504 (E.D.Mo. 2014), Judge Adelman denied summary judgment to the parties in a TCPA/FDCPA telephonic harassment case. The District Court found that Plaintiff’s allegation that he did not know whether he provided his cellular telephone number to the Defendant was sufficient to defeat summary judgment. Defendant first argues that no genuine issue of… Read More
In Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D.Cal. 2014), Judge Anello granted summary judgment to a TCPA defendant, finding that Plaintiff had consented to be called on her cellular telephone and had not revoked consent. On September 24, 2012, Plaintiff and her minor child, S.H., went to Sharp Grossmont Hospital to receive treatment for possible food poisoning. Upon admission,… Read More
In Higgingbotham v. Hollins, 2014 WL 2865730 (D.Kan. 2014), Judge James stayed another TCPA case based on the primary jurisdiction of the FCC. Plaintiff alleges that Defendant contacted her on her cellular telephone, using a prerecorded voice message, in an attempt to collect on an alleged debt from someone other than Plaintiff. Plaintiff further alleges that she did not consent… Read More
In Gray v. Morgan Drexen, Inc., 2014 WL 2573227 (M.D.Fla. 2014), Judge Steele denied Summary Judgment to a TCPA defend based on a triable issue of fact as to whether the Plaintiff had orally revoked consent to be auto-dialed on her cellular telephone. The facts were as follows: This case concerns alleged violations of the Telephone Consumer Protection Act (TCPA),… Read More
In Trainor v. Citibank, Nat. Ass'n, 2014 WL 2574527 (D.Minn. 2014), Judge Magnuson refused to stay a TCPA case based on the Primary Jurisdiction Doctrine. Citibank seeks a stay of this action to allow the FCC to rule on several pending petitions that will determine whether Citibank's telephone equipment meets the definition of automatic telephone dialing system (“ATDS”) in the… Read More
In Murray v. Diversified Consultants, Inc., 2014 WL 2574042 (M.D.Fla. 2014), Judge Moody refused to stay a TCPA based on the Primary Jurisdiction doctrine. The first issue regarding whether the TCPA applies to non-telemarketing calls such as debt collection calls has already been addressed by the Eleventh Circuit in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.2014).… Read More
The Court of Appeals for the 11th Circuit replaced it's June 5, 2014 decision, and issued a substitute opinion here, stating that the issue on appeal previously was decided by its Osorio decision, which had defined “called party” as the subscriber, and that “each succeeding panel is bound by the holding of the first panel to address an issue of law,… Read More
In Breslow v. Wells Fargo, here, the 11th Circuit followed the 7th Circuit's Soppett decision to find that "called party" under the TCPA is the subscriber to the cellular telephone. "At bottom, the FCC recognized that debt collectors are in a better position to determine whether a party’s consent is still valid. That is, a person who is assigned a… Read More
In Fenescey v. Diversified Consultants, Inc., 2014 WL 2526571 (M.D.Pa. 2014), Judge Conaboy refused to stay a TCPA case based on the Primary Jurisdiction Doctrine because he believed the issues presented already had been decided by the Third Circuit Court of Appeals. Here the question of whether the TCPA applies to non-telemarketing calls made to a cellular phone has been… Read More
In Sterk v. Path, Inc., --- F.Supp.2d ----, 2014 WL 2443785 (N.D.Ill. 2014), Judge Der-Yeghiayan found, after discovery was permitted on the subject, that a text message service used an ATDS within the meaning of the TCPA. The parties both argue that they are entitled to judgment as a matter of law as to whether Path used an ATDS to… Read More
In Passero v. Diversified Consultants, 2014 WL 2257185 (W.D. N.Y. 2014), here, Judge Curtin stayed a TCPA case against a Debt Collector who placed multiple calls to plaintiffs’ cellular telephone service in an effort to collect on a debt incurred by a non-party. As indicated by the pleadings and submissions presently before the court, DCI has raised questions in this case… Read More
In Gusman v. Comcast Corp., 2014 WL 2115472 (S.D.Cal. 2014), Judge Curiel stayed a TCPA reassigned number case based on the FCC’s primary jurisdiction. Recently, district courts have stayed cases concerning this particular issue of whether liability attaches for calls placed to reassigned telephone numbers based on these petitions before the FCC. Fontes v. Time Warner Cable Inc., No. 2:14cv2060–CAS(CWx),… Read More
In Rowell v. NCO Financial Systems, Inc., 2014 WL 2154422 (D.Kan. 2014), Judge O’Hara held that the TCPA’s imposition of strict liability did no immunize a TCPA plaintiff from discovery, and ordered the Plaintiff to respond to broad-reaching discovery propounded by the Defendant. The TCPA plaintiff was ordered to respond to interrogatories seeking all communications between the Plaintiff and the… Read More
In Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. 2014) here, Judge Burns granted summary judgment to the Defendant on Plaintiff’s TCPA and UCL claims. For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he… Read More
In Cherkaoui v. Santander Consumer USA, Inc., here, the District Court granted Santander’s Motion for Summary Judgment on Plaintiff’s TCPA claim. The District Court found that the Plaintiff consented to be called on his cellular telephone by providing his cellular telephone number in his credit application for the purchase of a vehicle. Plaintiff offered self-serving testimony that he had revoked… Read More
In Rector v. WFDS, here, Judge Fischer granted summary judgment on Plaintiff's TCPA, FDCPA, and Intrusion on Seclusion claims. Plaintiff, a third party who was listed as credit reference on customer's credit application, claimed that Wells Fargo made dialer calls to his cell phone. Wells Fargo made a handful of calls to Plaintiff to question the whereabouts of the customer… Read More
In Dominguez v. Yahoo! Inc., --- F.Supp.2d ----, 2014 WL 1096051 (E.D.Pa. 2014), Judge Baylson rejected the FCC’s interpretation of what an ATDS is, and found that an ATDS must have the present capacity to randomly generate numbers, which Yahoo!’s dialer did not. However, these acknowledgements do not resolve the crux of the issue: whether the system had the capacity… Read More
In Higgenbotham v. Diversified Consultants, Inc., 2014 WL 1930885 (D.Kan. 2014), Judge O'Hara stayed a TCPA case against a debt collector based on the Primary Jurisdiction Doctrine. The court finds that the situation in this case fits the purpose of the doctrine. Here is a recap of what we know: (1) Plaintiff alleges that one of the two ways defendant… Read More
In Barrera v. Comcast Holdings Corporation, 2014 WL 1942829 (N.D.Cal. 2014), Judge Henderson stayed a TCPA case against a debt collector under the Primary Jurisdiction of the FCC. Plaintiff, in opposition, argues that the FCC's resolution of this issue will not be relevant and will have “little to no” effect on the outcome of the case. Opp'n at 2. According to… Read More
