TCPA

In Kristensen v. Credit Payment Services, 2014 WL 1256035 (D.Nev. 2014), Judge Gordon denied defendant’s Motion to Dismiss a TCPA class action, finding that vicarious liability might exist.  The facts were as follows: The Complaint alleged that the website in the text message—www.lend5k.com—automatically redirected to websites owned and operated by CPS and/or its agents who promoted CPS's payday loan products.… Read More

In Sharp v. Allied Interstate Inc., 2014 WL 1224656 (W.D.N.Y. 2014), Judge Skretny denied summary judgment to a defendant collecting on a cellular telephone bill due to a failure to prove consent. This Court has previously ruled that a consumer has consented to calls even if the cell phone number was not provided at the time the account was opened.… Read More

In Osorio v. State Farm Bank, F.S.B.--- F.3d ----, 2014 WL 1258023 (11th Cir. 2014), the Court of Appeals for the 11th Circuit reversed the district court's finding that State Farm did not violate the TCPA when it called its credit card holder on a cell phone that she shared with her housemate. This is a consumer-protection case arising from… Read More

In Sterling v. Mercantile Adjustment Bureau, LLC., 2014 WL 1224604 (W.D.N.Y. 2014), Judge Arcara affirmed the Magistrate's recommendation and granted summary judgment to a TCPA plaintiff in a wrong-party called case.  The facts were as follows: Plaintiff is the subscriber assigned to a cellular telephone number previously held by a debtor (“Jane Doe”), who had provided the number to Mercy Hospital… Read More

In Steinhoff v. Star Tribune Media Co., LLC, 2014 WL 1207804 (D.Minn. 2014), Judge Nelson found that Plaintiff had consented to receive calls on her cellular telephone. The parties dispute whether the third element of a TCPA claim is met.FN2 Defendant argues that Plaintiff gave her prior express consent to receive autodialed calls to her cellular number because she disclosed… Read More

On Thursday the FCC entered rulings  on the petitions filed by GroupMe, Inc.: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-33A1.pdf and the Cargo Airline Association: http://transition.fcc.gov/Daily_Releases/Daily_Business/2014/db0327/FCC-14-32A1.pdf The FCC's ruling on the petition of Group Me, Inc. for an expedited declaratory ruling and clarification on the issue of whether it could rely on its members to provide consent for "called parties" that would receive text messages as… Read More

In Buonomo v. Optimum Outcomes, Inc.--- F.R.D. ----, 2014 WL 1013841 (N.D.Ill. 2014), Judge St. Eve granted in part and denied in part a TCPA defendant's Motion to Strike class allegations in a wrong-party TCPA case. One of the central issues in TCPA “wrong party” cases is whether the called party, which the Seventh Circuit has defined as “the person subscribing… Read More

In Hitchman v. National Enterprise Systems, Inc., 2014 WL 912363 (S.D.Fla. 2014), Judge Marra denied cross-motions for summary judgment due to a factual question of whether the Plaintiff orally revoked consent to receive autodialed calls on her cellular telephone. The TCPA is silent on whether a consumer may revoke previously-granted consent to receive calls on her cellular telephone. It is… Read More

In A & L Industries, Inc. v. P. Cipollini, Inc., 2014 WL 906180 (D.N.J. 2014), Judge Chesler held that class notice by fax did not constitute “junk fax” under the TCPA. The Court also adopts the reasoning advanced in City Select to reject the exact same arguments regarding Rule 5(b) and the TCPA that are proffered by Defendant here. See… Read More

In Baker v. Caribbean Cruise Line, Inc.,  2014 WL 880634 (D.Ariz. 2014), Judge Rosenblatt held that the Plaintiff adequately pleaded the use of an ATDS under the TCPA. Defendant asserts that Plaintiff's complaint fails to support the allegation that the calls were automated or used an artificial or prerecorded voice, and omits facts about the time, length, and content of the calls.… Read More

In Charvat v. Allstate Corporation, --- F.Supp.2d ----, 2014 WL 866377 (N.D.Ill. 2014), Judge Bucklo held that consent obtained during an autodialed call, such as requesting that a consumer ‘press 1’ to receive further information, does not constitute the prior consent necessary to deliver the message in the first place.  Judge Bucklo also refused to stay the matter under the… Read More

In Chapman v. First Index, Inc., 2014 WL 840565 (N.D.Ill. 2014), Judge Ellis denied class certification in a TCPA-fax case.  Although Judge Ellis recognized the split of authority, and although the Plaintiff attempted to define the class to exclude those who had provided prior express consent, Judge Ellis still found the class unmanageable due to individualized inquiries. Courts are split… Read More

In Labou v. Cellco Partnership, 2014 WL 824225 (E.D.Cal. 2014), Judge England denied Plaintiff's request for pre-certification discovery, and granted a pre-emptive defense motion to de-certify a class action under facts reminiscent of Soppet:  Plaintiff filed the present complaint on April 30, 2012. She alleges that Defendants began calling Plaintiff's cellular phone number with an automated telephone dialing system to… Read More

In Moriarity v. Nationstar Mortg., LLC, 2014 WL 801021 (E.D.Cal. 2014), in a case filed by an in pro per plaintiff, Judge Ishii “inferred” prior express consent by virtue of the existing debtor creditor relationship, and dismissed the Plaintiff’s TCPA claim. It is the general rule that, “where a valid assignment of a mortgage has been consummated with proper consideration,… Read More

Congratulations to the Firm's client, car2go, who obtained Judgment on the Pleadings in the District Court for the Western District of Washington on its affirmative defense of "prior express consent" in a class action filed under the TCPA.  Eric Troutman, who practices in the Firm’s Orange County Office but who also is a member of the Washington State Bar, represented car2go in the… Read More

In Gragg v. Orange Cab Co., Inc.,  2014 WL 801305 (W.D.Wash. 2014), Judge Lasnik denied Plaintiff's motion to reconsider his previous ruling that Orange Cab did not use a dialer to send text messages for passsengers who ordered cabs in Seattle. Defendants moved for summary judgment based on the undisputed characteristics of its proprietary dispatch notification system. Dkt. # 69. Defendants expressly… Read More

In Mendoza v. UnitedHealth Group, Inc., No. C131553-PJH N.D. Cal. 2014), Judge Hamilton granted a stay of a TCPA case pending outcome of the FCC's ruling on various pending petitions related to ATDS and whether they must possess "present" capacity to randomly generate numbers at the time the call is placed.  A copy of Judge Hamilton's Order can be found… Read More

In Hurrle v. Real Time Resolutions, LLC, 2014 WL 670639, (U.S.D.C. W.D. Wash. CASE NO. C13-5765 BHS 2014), Judge Settle granted a stay of a TCPA case based on the Primary Jurisdiction doctrine, and the Communications Innovators Petition pending before the FCC.    A copy of the Order can be found here.   Read More

United Healthcare has filed a petition with the FCC essentially taking a run at Soppett.  According to the FCC, United Healthcare indicates that it obtains prior express consent from individuals before placing healthcare-related informational calls to wireless telephone numbers using an automatic telephone dialing system or an artificial or prerecorded voice.   “Unbeknownst to United,” however, “the wireless telephone numbers for… Read More

ACA’s petition was filed on January 31, but was accepted for filing by the FCC on February 11.  ACA’s petition is broad-based, asks the FCC to accomplish the following objectives: • Confirm that not all predictive dialers are categorically automatic telephone dialing systems. •Confirm that “capacity” under the TCPA means present ability. •Clarify that prior express consent attaches to the… Read More