TCPA

In Lynn v. Monarch Recovery Management, Inc., 2013 WL 3071334 (D.Md. 2013), Judge Quarles refused to certify his opinion that a call to a land-line made over VoIP Protocol fell within the TCPA’s “charged call” liability provisions rather than the TCPA’s “land-line” exemption. The facts, recited in more detail below, were that the Plaintiff set up his land-line through VoIP… Read More

In Chen v. Allstate Ins. Co., 2013 WL 2558012 (N.D.Cal. 2013), Judge Hamilton found a Rule 68 offer insufficient to moot a TCPA plaintiff’s federal law suit, and found an ‘unintended recipient’ of calls to her cellular telephone pleaded sufficient facts to state a claim under the TCPA.  The facts were as follows: Plaintiff Richard Chen (“Chen”) filed the original… Read More

In Mais v. Gulf Coast Collection Bureau, Inc., 2013 WL 2491052 (S.D.Fla. 2013), Judge Scola certified his previous ruling (http://www.calautofinance.com/?p=4112) for interlocutory appeal to the 11th Circuit Court of Appeals.  This would also draw into question subsequent decisions that rely on Mais, including Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013) discussed (http://www.calautofinance.com/?p=4165) – at least… Read More

In Scott v. Westlake Services, LLC, --- F.Supp.2d ----, 2013 WL 2468253 (N.D.Ill. 2013), Judge Castillo dismissed a TCPA class action as moot due to a full-relief settlement offer made before a class certification motion was filed.  The facts were as follows: Westlake is a California business entity head-quartered in Los Angeles. (R. 6, Am.Compl.¶ 6.) Scott is a resident… Read More

Sometimes, bad facts don’t make bad law.  In Gannon v. Network Telephone Services, Inc., 2013 WL 2450199 (C.D.Cal. 2013), Judge Klausner refused to certify a TCPA text-message class action brought a sex-line operator.  The facts were as follows: Defendant NTS is engaged in the business of telephone entertainment, in particular pay-per-call “phone sex” and “SexText.” NTS operates approxi-mately 45,000 telephone… Read More

In Bridging Communities, Inc. v. Top Flite Financial, Inc., 2013 WL 2417939 (E.D.Mich. 2013), the Court held that a TCPA Fax case could not be certified due to individual questions related whether the faxes were ‘unsolicited’ under the TCPA. Fatal to Plaintiff's Motion is the fact that the Court fails to find that common issues predominate over the individualized issues… Read More

In Roberts v. PayPal, Inc., 2013 WL 2384242 (N.D.Cal. 2013), Judge Hamilton granted summary judgment to a TCPA defendant who was sued for sending a text message to a Plaintiff who had provided the cell phone number to the defendant as part of using the defendant’s services.  What is interesting about this case is that the Court decided not to… Read More

In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013), Judge Mola refused to reconsider his class certification of a TCPA class. Turning to a few of the matters raised at oral argument, Defendants complain that the TCPA class definition is problematic because it does not identify any parameters for determining when an individual is a “Florida… Read More

In O'Connor v. Diversified Consultants, Inc., 2013 WL 2319342 (E.D.Mo. 2013), Judge Sippel denied class certification in an FDCPA/TCPA case.  Judge Sippel declined to certify an FDCPA ‘overshadowing’ class, finding that individual inquires predominated. However, a debt collector cannot use collection tactics that lead a debtor to believe he does not have any right to challenge the debt. Such a… Read More

In Carlson v. Nevada Eye Care Professionals, 2013 WL 2319143 (D.Nev. 2013), Judge Jones denied a defendant’s Summary Judgment Motion brought on the basis that the Plaintiff had consented to receive the text messages sent by the Defendant. Plaintiff and class representative Mia Carlson, f.k.a. Mia Shaughnessy, received the following text massage on her cell phone on December 5, 2012: … Read More

In Standard Mut. Ins. Co. v. Lay, --- N.E.2d ----, 2013 IL 114617, 2013 WL 2253203 (Ill. 2013), the Illinois Supreme Court held that the $500 penalty available under the TCPA was not punitive and, accordingly, was not precluded from insurability.  Also, Congress intended the $500 liquidated damages available under the TCPA to be, at least in part, an incentive… Read More

In Robbins v. Coca-Cola-Company, 2013 WL 2252646 (S.D.Cal. 2013), Judge Gonzalez found that the Plaintiffs stated a TCPA claim against Coke for SMS text messages sent promoting Coke products. “Whether Plaintiffs gave the required prior express consent is an affirmative defense to be raised and proved by a TCPA defendant, however, and is not an element of Plaintiffs' TCPA claim.”… Read More

Here is the FCC’s ruling regarding agency liability under the TCPA.  The FCC declared that sellers “may be held vicariously liable under federal common law principles of agency including not only formal agency, but also principles of apparent authority and ratification” – opining that vicarious liability would incentivize companies to police TCPA compliance by third party vendors and telemarketers.  The FCC… Read More

In Blair v. CBE Group Inc., 2013 WL 2029155 (S.D.Cal. 2013), Judge Anello rejected a debt collector’s home-run FRCP 12(b)(6) motion to dismiss a TCPA class action at the pleadings stage.  First, Judge Anello found that debt collectors such as CBE Group might be subject to the TCPA, and Plaintiff’s Complaint had pleaded enough. Relying on extensive legislative history and… Read More

In Muller v. Auto Mission, Ltd., 2013 WL 1996916 (N.D.Cal. 2013), Magistrate Judge Cousins remanded a removed state court action that alleged a host of Rees-Levering Automobile Sales & Finance Act violations, many of which included embedded federal claims.  Judge Cousins found an absence of substantial federal question, and rejected the defendants’ contention that a defense of compliance with federal… Read More

In Meyer v. Receivables Performance Management, LLC, 2013 WL 1914392 (W.D.Wash. 2013), Judge Jones summarily disposed of a debt collector’s efforts to dismiss a TCPA class action at the pleadings stage. From February 2012 to April 2012, Ms. Meyer received many calls on her cellular phone from RPM. RPM is a debt collector. When Ms. Meyer did not answer, RPM… Read More

This one's got it all, TCPA fans.   In Mais v. Gulf Coast Collection Bureau, Inc., --- F.Supp.2d ----, 2013 WL 1899616 (S.D.Fla. 2013), Judge Scola decided not to follow any of the FCC regulations on the TCPA that otherwise apparently would have barred Plaintiff’s TCPA claims. The facts were as follows:  In 2009, Plaintiff Mark Mais went to the… Read More

In Genaw v. NCO Financial Systems, Inc., 2013 WL 1876792 (N.D.Tex. 2013), Judge Robinson found that a TCPA Plaintiff who received debt collection calls did not trigger the do-not-call registry or its requirement that a caller provide copies of its DNC procedures upon demand.  Judge Robinson also confirmed that the Truth-in-Caller-ID Act permitted a debt collection caller to block its… Read More

In Gragg v. Orange Cab Co., Inc., --- F.Supp.2d ----, 2013 WL 1788479 (W.D.Wash. 2013), Judge Lasnik found that a TCPA Plaintiff, on his second time around, pleaded enough facts to demonstrate use of an ATDS with sufficiency to state a claim under the TCPA in a text message case. Contrary to plaintiff's arguments about the pleading standard for alleging… Read More

In Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D.Cal. 2013), Judge Wu found that the Plaintiff consented to receive confirmatory text messages from the Los Angeles Lakers by providing his cellular telephone number to the Lakers in an attempt to get his text message on the Jumbo-tron.  The facts were as follows: The First Amended Complaint (“FAC”) alleges that… Read More