TCPA

We reported previously on the pending GroupMe petition, as well as others, pending before the FCC regarding whether the TCPA's definition of autodialer requires a 'present' capacity to store numbers.  (http://www.calautofinance.com/?p=3853) A District Court in Alabama recently held that the TCPA so requires: In Hunt v. 21st Mortg. Corp., 2013 WL 5230061 (N.D.Ala. 2013), Judge Acker was deciding a discovery dispute between the… Read More

In Whaley v. T-Mobile, USA, Inc., 2013 WL 5155342 (E.D.Ky. 2013), Judge Bunning ordered a TCPA/Unintended Recipient case to arbitration based on an arbitration clause that the defendant actually had with the recipient on an unrelated account.  Beginning in July 2012 T–Mobile used an automatic dialing system to call plaintiff regarding a debt purportedly owed by a third person, Thomas… Read More

In Knutson v. Schwan's Home Service, Inc., 2013 WL 4774763 (S.D.Cal. 2013), Judge Curiel certified a TCPA class action in what appears to be the first TCPA class certified within the 9th Circuit outside of the “single source” context. Schwan's is in the business of delivering frozen foods to residential customers. From November 2008 through November 13, 2011, Schwan's contracted… Read More

In Iniguez v. The CBE Group, --- F.Supp.2d ----, 2013 WL 4780785 (E.D.Cal. 2013), Judge Mendez addressed the propriety of a class-action lawsuit brought against a debt collection agency under TCPA by an “unintended recipient” of collection calls.  The lawsuit was based on Plaintiff's allegations that Defendant placed numerous calls to her cell phone seeking to collect a debt owed… Read More

In Forrest v. Genpact Services, LLC, --- F.Supp.2d ----, 2013 WL 4516479 (M.D.Pa. 2013), Judge Nealon denied a Motion to Dismiss that was brought on the basis that the TCPA plaintiff had not alleged that she actually answered the autodialed calls to her cellular telephone. Defendant argues that Plaintiff's TCPA claims must fail because she fails to allege that she… Read More

In Gager v. Dell Financial Services, LLC, --- F.3d ----, 2013 WL 4463305 (2013), the Court of Appeals for the Third Circuit held that the TCPA permits a consumer to revoke consent to be called by an autodialer on their cellphones. Dell's principal argument is that the TCPA's silence as to whether a consumer may revoke her prior express consent… Read More

In Huizar v. Mandarich Law Group LLP, 2013 WL 4209050 (C.D.Cal. 2013), a law firm was sued arising out of collection on an unpaid debt for the purchase of an engagement ring.  The facts were as follows: Huizar purchased an engagement ring on credit from a now-defunct jewelry store. Compl. ¶ 21. Plaintiffs allege that defendant engaged in debt collection activities… Read More

In Castro v. Green Tree Servicing LLC, --- F.Supp.2d ----, 2013 WL 4105196 (S.D.N.Y. 2013), Judge Ramos found that including a GLB Privacy Notice with a collection letter was deceptive.  Judge Ramos also denied the defendant’s Motion for Summary Judgment on Plaintiff’s TCPA claim.  Judge Ramos found questions of fact that an auto-dailer was used and that trapping a consumer’s… Read More

In Smith v. Progressive Financial Services, Inc., 2013 WL 3995004 (D.Or. 2013), Judge McShane found that a student loan taken out to attend an aviation academy was still a ‘consumer’ debt under the FDCPA. Contrary to defendant's argument, “education” encompasses something broader than mere investment in pursuit of profit.   Brown v. Bd. of Ed. Of Topeka, Shawnee Cnty, Kan., 347… Read More

In Jamison v. First Credit Services, Inc., 2013 WL 3872171 (Bkrtcy.N.D.Ill. 2013), Judge Kendall denied a TCPA-class action plaintiff’s motion for reconsideration of the Court’s denial of class certification because the Plaintiff was a convicted felon.  This case involved an alleged violation of the TCPA whereby FCS, on behalf of Honda, allegedly called Jamison's cellular telephone multiple times without Jamison's… Read More

In Craftwood II, Inc. v. v. Tomy Intern., Inc., 2013 WL 3756485 (C.D.Cal. 2013), Judge Carter rejected the use of the FRCP 68 device made to the individual class-representative to moot a TCPA class action after Genesis.  Defendant’s counsel sent Plaintiff a settlement offer. “In order to end this litigation now,” Tomy offered Plaintiff $1,500 for each faxed advertisement that… Read More

In Knutson v. Schwan's Home Service, Inc., 2013 WL 3746118 (S.D.Cal. 2013), Judge Curiel vacated and remanded for further consideration a Magistrate’ Judge’s order requiring a TCPA class-action plaintiff to produce an outbound dial list.   Schwan's operates a grocery delivery service. In addition to delivering groceries to their primary customers, Schwan's also made deliveries on behalf of NutriSystem, Inc. to… Read More

In Roy v. Dell Financial Services, LLC, 2013 WL 3678551 (M.D.Pa. 2013), Judge Caputo held that calls to an 800 # for the purposes of debt collection are not subject to the TCPA. The TCPA was “[e]nacted in 1991 as part of the Federal Communications Act” to “deal with an increasingly common nuisance—telemarketing.” ErieNet, Inc. v. Velocity Net, Inc., 156 F.3d… Read More

In Volpe v. Caribbean Cruise Line, Inc., 2013 WL 3724858 (N.D.Ill. 2013), Judge Guzman found that the Plaintiff stated a claim under the TCPA notwithstanding defendant's argument that plaintiff's complaint triggered the defense of consent. The TCPA prohibits any person from “mak[ing] any call ... using any automatic telephone dialing system or an artificial or prerecorded voice ... to any telephone number… Read More

In Keim v. ADF MidAtlantic, LLC, 2013 WL 3717737 (S.D.Fla. 2013), Judge Marra allowed a rule an FRCP 68 Offer to moot a Plaintiff's TCPA class action. Plaintiff seeks statutory damages at $500.00 per text message for negligent violations of the Act, statutory damages of up to $1,500.00 per text message for each willful violation of the Act, an injunction requiring Defendants… Read More

In Masters v. Wells Fargo, 2013 WL 3713492 (W.D. Tex. 2013), here, Judge Sparks found that a Rule 68 Offer in a TCPA Class Action – that was amended in a reply brief to accommodate additional calls alleged by the named Plaintiff – mooted a Plaintiff’s individual claim and requiring dismissal of the Plaintiff’s class action. Masters's Response makes much… Read More

In Moriarity v. Nationstar Mortg., LLC, 2013 WL 3354448 (E.D.Cal. 2013), Magistrate Judge Snyder followed the FCC regulations and found debt collection calls to land-lines exempt from the TCPA. Plaintiff's second claimed violation of the TCPA is of 47 U.S.C. § 227(b)(1)(B). This section makes it unlawful for a person as described above “to initiate any telephone call to any… Read More

In Brown v. DIRECTV, LLC, 2013 WL 3273811 (C.D.Cal. 2013), Judge Gee ordered a TCPA case to arbitration, notwithstanding the Plaintiff’s argument that the claim was outside the scope of the clause.  This action is about whether collection calls were legal under TCPA. Other district courts have compelled arbitration of TCPA claims in similar circumstances. See, e.g., Cayanan v. Citi… Read More

In Lusskin v. Seminole Comedy, Inc., 2013 WL 3147339 (S.D.Fla. 2013), Judge Scola -- who authored the Mais decision (http://www.calautofinance.com/?p=4199) -- declined (again) to follow the FCC's 1992 Order, stating that it deviated from the TCPA's express language.  Accordingly, Judge Mais held that merely providing one's cellular telephone number does not equate to express consent to receive text messages. The TCPA is clear that… Read More

In Clayton v. Aaron's Inc., 2013 WL 3148174 (E.D.Va. 2013), Judge Spencer addressed whether a consumer who received debt collection text messages stated a claim under the TCPA.  Judge Spencer held that the consumer could not. § 227(b)(1)(A)(iii) prohibits any person within the United States from making any call (or text message) to a cell phone number, other than for emergency purposes… Read More