Cases Holding that TCPA Does Not Allow Revocation of Consent In Saunders v. NCO Financial Systems, Inc., 2012 WL 6644278 (E.D.N.Y. 2012), Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could… Read More
In Saunders v. NCO Financial Systems, Inc., here, Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could not be revoked. Read More
In Mudgett v. Navy Federal Credit Union, 2012 WL 870758 (E.D.Wis. 2012), Judge Edelman held that manually placing a call from a telephone connected to an ATDS did not trigger the TCPA. Mudgett's second argument is based on language of the TCPA that defines “automatic telephone dialing system” as equipment that has the capacity to autodial. See 47 U.S.C. §… Read More
On December 28, the Court of Appeals for the Ninth Circuit in Meyer v. Portfolio Recovery Services, 2012 WL 6720599 (9th Cir. 2012) denied rehearing of its previous opinion, but amended its opinion in the manner industry requested in its Amicus brief. (weblog post regarding decision: http://www.calautofinance.com/?p=3193); industry support for re-hearing: http://www.calautofinance.com/?p=3393)) Specifically, industry asked the Court of Appeals to… Read More
In Balthazor v. Central Credit Services, Inc., 2012 WL 6725872 (S.D.Fla. 2012), Judge Cohn denied certification of a TCPA class action, finding the issue of consent to be too individualized. The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. Resolution of each putative class member's TCPA claim would necessarily involve an individual assessment of whether each… Read More
In Johansen v. Vivant, Inc., 2012 WL 6590551 (N.D.Ill. 2012), Judge Aspen found that Iqbal/Twombly require a TCPA plaintiff to plead at least something more under the TCPA than that an ATDS was used. The cases fall within three general categories. The first set of cases hold that reciting the statutory definition of an ATDS in the complaint suffices and that the validity… Read More
In Sacco v. Bank of America, N.A., 2012 WL 6566681 (W.D.N.C. 2012), Judge Voorhees conducted a lengthy examination of NBA/OCC/Dodd-Frank Pre-emption and whether those laws pre-empted the state fair debt collection laws. Judge Voorhees concluded that there was no pre-emption. The facts were as follows: Plaintiff Darlene Sue Sacco, a resident of Mooresville, North Carolina, here contends that De-fendant Bank of America,… Read More
In Teltech Systems, Inc. v. Bryant, --- F.3d ----, 2012 WL 6097949 (5th Cir. 2012), the Court of Appeals for the 5th Circuit held that the Truth-in-Caller ID Act pre-empted state-law ‘anti-spoofing’ legislation. “Spoofing” is misrepresenting the originating telephone caller's identification (caller ID) to the call recipient. The practice has both improper and legitimate applications. In early 2010, Mississippi enacted… Read More
In Brook v. Suncoast Schools, FCU, 2012 WL 6059199 (M.D.Fla. 2012), Judge Hernandez-Covington suggests that revocation of consent under the TCPA is ineffective unless given in writing, but allowed the Complaint to stand. Suncoast further argues that, although the Cardosos have alleged that Suncoast “made multiple collection calls to [the Cardosos'] personal cell phone utilizing an automatic telephone dialing system… Read More
In Edwards v. National Credit Adjusters, LLC, 2012 WL 5851288 (Nev. 2012), the Nevada Supreme Court found that a debtor’s port of his land-line to cell phone did not create liability under the TCPA for autodialed calls to the cell phone because the debtor’s providing the telephone number in his application for credit – even if the number was a… Read More
In Jordan v. ER Solutions, Inc., --- F.Supp.2d ----, 2012 WL 5245384 (S.D.Fla. 2012), Judge Dimitrouleas found no TCPA liability under the TCPA for auto-dialed calls to a debtor who had consented to be called at that number when she applied for credit, even though the debtor did not own the number. Jordan got into debt by shopping at Seventh… Read More
On November 29, 2012, the FCC issued a Declaratory Ruling that sending a one-time confirmatory text message within five minutes of receipt of a consumer's request that no further text messages be sent does not violate the TCPA or the FCC's rules as long as the sender had prior express consent to send text messages using an automatic telephone dialing system. The FCC… Read More
Industry supported the Appellant's Request for Re-hearing in the 9th Circuit's Meyer decision. Meyer AFSA/CFSA Amicus The 9th Circuit ordered the Appellees to respond to the Appellant's Request for Re-hearing. 9th Circuit's Meyer Order. Appellee's Response is here. Read More
In Johnson v. Credit Protection Ass'n, L.P., 2012 WL 5875605 (S.D.Fla. 2012), Judge Marra found for a debt collector under the TCPA, finding that the debtor had given consent to be called and had not limited that consent in the debtor's original transaction with the creditor. The facts were as follows: Plaintiff Sherone C. Johnson (“Plaintiff”) provided his cellular phone number to… Read More
In Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039 (N.D.Ala. 2012), Judge Smith dismissed a TCPA texting class action because Plaintiff had provided her cellular telephone number to Wal-Mart at the time of sale. Plaintiff's putative class action complaint asserts a single cause of action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More
In Agne v. Papa John's Intern., Inc., --- F.R.D. ----, 2012 WL 5473719 (W.D.Wash. 2012), Judge Coughenour certified a TCPA class action against PapaJohn’s pizza for advertising text messages send to thousands of consumers. Plaintiff alleges that Defendants violated state and federal law when they sent her and thousands of others unsolicited text messages advertising Papa John's pizza products. Papa… Read More
In Dobbin v. Wells Fargo Auto Finance, Inc., 2011 WL 2446566 (N.D.Ill. 2011), Judge Kennelly held that the availability, but not use, of an autodialer was fatal to Plaintiff's TCPA claim. Plaintiffs concede, however, that Wells Fargo's agents' desk phones can also be used independently of its predictive dialing technology—that is, while a call center agent is not logged into the universal… Read More
Communications Innovators filed a Petition for Declaratory Ruling before the FCC, who set the deadline for commentary as November 15, 2012, and the replies due November 30, 2012. The FCC’s inquiry suggests breadth that might not only include purported ‘dual purpose’ calls, but also what an ATDS is. A copy of the Petition is here and the FCC's Request for Comment is here. Read More
In A Fast Sign Co., Inc. v. American Home Services, Inc., --- S.E.2d ----, 2012 WL 5381254 (Ga. 2012), the Georgia Supreme Court found that the TCPA liability derives from the number of attempts (fax) not the number of received faxes. At the conclusion of a bench trial, the trial court had found that AHS violated the TCPA because it… Read More
In McNamara v. Royal Bank of Scotland Group, PLC, 2012 WL 5392181 (S.D.Cal. 2012), Judge Lorenz called out a now-frequently employed tactic by Plaintiff’s counsel, who litigate individual collection torts in state court to be able argue waiver of the arbitration clause in a later-filed class action in federal court. Judge Lorenz ordered a TCPA class action to arbitration, finding… Read More
