In Legg v. Voice Media Group, Inc.--- F.Supp.2d ----, 2014 WL 2004383 (S.D.Fla. 2014), Judge Cohn denied summary judgment to both sides on whether an ATDS was used in a TCPA text message case. The facts were as follows. This suit arises from a series of unwanted text messages Defendant Voice Media Group, Inc. (“VMG”) allegedly sent to Plaintiff Christopher… Read More
In Delgado v. Progress Financial Co., 2014 WL 1756282 (E.D.Cal. 2014), Judge O’Neill ordered a Plaintiff’s TCPA and FDCPA claims to arbitration. Mr. Delgado does not dispute that he signed the Arbitration Agreement at the time he applied for a loan from Progreso Financiero; nor does he dispute the validity of the agreement. Doc. 14 at 2. Mr. Delgado argues,… Read More
In Chyba v. First Financial Asset Management, Inc., 2014 WL 1744136 (S.D.Cal. 2014), Judge Benitez found that even if Plaintiff created a triable issue of fact as to whether she gave prior express consent to be called on her cellular telephone, a third-party debt collector had a good faith basis to believe that Plaintiff had provided consent to the creditor… Read More
On June 27, 2014, Judge Saylor of the U.S.D.C. in Massachusetts in Davis v. Diversified Consultants, Inc, here, concluded that the LiveVox technology was an ATDS under the FCC's rules, and granted summary judgment to the Plaintiff on his TCPA claim. Judge Saylor's decision echoes that of Judge Ungaro of the U.S.D.C. for the Southern District of Florida in Lardner v. Diversified… Read More
In Legg v. Voice Media Group, Inc., 2014 WL 1767097 (S.D.Fla. 2014), Judge Cohn struck a TCPA Plaintiff’s expert’s testimony regarding whether Defendant’s dialer was an ATDS under the TCPA. In the Supplemental Snyder Declaration and the Second Supplemental Snyder Declaration, Snyder opines that the systems VMG used to send its text messages satisfy the TCPA's definition of an automatic… Read More
In Olney v. Job.com, Inc., 2014 WL 1747674 (E.D.Cal. 2014), Judge O’Neill found trial issues of fact and denied summary judgment to a TCPA defendant who the Resume–Now's resume posting service, a service that is offered only to subscribing members and to whom Plaintiff had provided his cellular telphone number. Plaintiff misinterprets Satterfield. “The FCC appears to have intended in… Read More
In Meyer v. Receivables Performance Management, LLC, 2014 WL 1744284 (W.D.Wash. 2014), Judge Jones denied to stay a TCPA action based on the primary jurisdiction argument, denied Plaintiff’s motion for discovery as to dialer-lists, and denied Plaintiff’s request to delay filing a Motion for Class Certification. The District Court declined to stay the Action based on the Primary Jurisdiction argument.… Read More
In Dayhoff v. Wells Fargo Home Mortgage, Inc. (M.D. Cal. 2014) 2014 WL 466151, Judge Dalton found that collection on a promissory note was a permissive counter-claim to a Plaintiff’s TCPA claim, and, therefore, the District Court would decline to exercise jurisdiction over the collection claim. Here, the Court has federal question subject matter jurisdiction over Plaintiff’s TCPA claim. Mims… Read More
In Hunt v. 21st Mortg. Corp., 2014 WL 1664288 (N.D.Ala. 2014), Judge Acker allowed Plaintiff’s TCPA expert Robert Biggerstaff to offer opinion testimony that the Defendant did not manually dial the calls to Plaintiff’s cellular telephone. Judge Acker’s decision was flavored by the fact that the Defendant installed a new dialer system within days after Plaintiff’s counsel’s wife filed the… Read More
In Elkins v. Melco Health Solutions, Inc., here, Judge Adelman found no TCPA violations for calls to a consumer about her health care prescriptions and/or needs. The Court finds that Plaintiff’s TCPA claim is barred because she gave her express prior consent to be called at the number she provided when she gave that number at the time of enrollment as… Read More
In Andersen v. Harris & Harris, Ltd., 2014 WL 1600575 (E.D.Wis. 2014), Judge Stadtmeuller found that a TCPA defendant met its burden of proof of demonstrating that the Plaintiff provided express consent to be called on his cellular telephone, and rejected the Plaintiff’s self-serving ambiguous evidence to the contrary. As mentioned above, H & H cannot have violated the TCPA… Read More
In Strand v. Corinthian Colleges, Inc., 2014 WL 1515494 (W.D.Mich. 2014), Judge Bell found that a TCPA Plaintiff must plead and identify the telephone number called in order to state a claim under the TCPA. Plaintiff cites one case for the proposition that Rule 8 and the cases governing its application do not require her to plead the cellular telephone… Read More
In Lamont v. Furniture North, LLC, 2014 WL 1453750 (D.N.H. 2014), Judge McCafferty found that a Husband, whose wife had provided his cellular telephone number in connection with a purchase transaction, still stated a claim under the TCPA because the husband had not given prior express consent to be called on his cellular telephone number. Except where otherwise indicated, the… Read More
In Heinrichs v. Wells Fargo Bank, Judge Alsup stayed a TCPA class action based on the Primary Jurisdiction of the FCC and its intention to rule on pending petitions relating to the issues raised by the 7th Circuit's Soppet decision and the 11th Circuit's Osorio decision. A copy of Judge Alsup's Order is here. The Plaintiff had argued that there… Read More
In Sojka v. DirectBuy, Inc., 2014 WL 1304234 (N.D.Ill. 2014), Judge Feinerman found a TCPA class action adequately pleaded. The facts were as follows: In this consolidated suit, Stephanie Sojka, Daniel Hartowicz, and Kenyatta Gilliam, on behalf of three putative classes, and Mark Sojka, individually, allege that DirectBuy, Inc. violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227… Read More
In Matlock v. United Healthcare Services, Inc., 2014 WL 1155541 (E.D.Cal. 2014), Judge Englund stayed a TCPA case based on the Primary Jurisdiction argument in a wrong-party TCPA case. The crux of Plaintiff's complaint is that Defendant violated the TCPA when it initiated calls to his cell phone without his consent. Defendant purportedly nonetheless had the consent of the prior… Read More
In Gusman v. Comcast Corp. 2014 WL 1340192 (S.D.Cal. 2014), Magistrate Judge Bartik issued orders on discovery rulings in a TCPA class action. The facts were as follows. Plaintiff commenced this putative class action on May 2, 2013 by filing a complaint alleging that Comcast violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq. (ECF No.… Read More
In Whatley v. Creditwatch Services, Ltd., 2014 WL 1287174 (E.D.Tex. 2014), Judge Schell declined to increase Plaintiff’s TCPA damages based on willfulness due to uncertainty in the law at the time as to whether consent could be revoked. Plaintiffs ask the court to award him $24,000, which amounts to treble damages for each of Defendant's sixteen violations of the TCPA.… Read More
In Ryan v. Jersey Mike's Franchise Systems, 2014 WL 1292930 (S.D.Cal. 2014), Judge Benitez granted a defense Motion to Deny Class Certification based on a conflict between the class representative’s deposition testimony and a declaration submitted by the representative in opposition to the Motion. Movants state that Jersey Mike's caused a pro-motional text message to be sent to the cell… Read More
In De La Torre v. Legal Recovery Law Office, 2014 WL 1279738 (S.D.Cal. 2014), Magistrate Judge Bartick ordered defendant to produce phone bills, but only for the time relevant in the Complaint and redacted to exclude calls made to parties other than the Plaintiff. Here, the Court concludes Defendant's phone bills are only relevant to the extent they contain evidence… Read More
