TCPA

Dear readers will recall our previous report on the Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), where Judge Tharpe essentially adopted the Leckler analysis and held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA. (http://www.calautofinance.com/wp-admin/post.php) CCS filed a Motion for Reconsider,… Read More

In Ryabyshchuck v. Citibank (South Dakota) N.A., 2012 WL 5379143 (S.D.Cal. 2012), Judge Gonzalez issued a rare decision applying common sense to the TCPA.   Plaintiff filed a class action against the defendant under the TCPA arising out of confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff had provided… Read More

In Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC, 2012 WL 4903269 (D.N.J.), defendant in a TCPA class action moved to dismiss, arguing that New York Civil Practice Law § 901(b) prevents the maintenance of Plaintiff's TCPA claim as a class action. Defendant argued that the language of § 227(b) (3)—“A person or entity may, if otherwise permitted by… Read More

In Scott v. Merchants Ass'n Collection Div., Inc., 2012 WL 4896175 (S.D.Fla. 2012), Judge O’Sullivan found that the Plaintiff’s pleading burden in a TCPA cell phone case did require the Plaintiff to plead an absence of consent because consent is an affirmative defense borne by the Defendant. As explained by this Court: “to establish a TCPA violation, Plaintiff must demonstrate… Read More

In Martin v. Cellco Partnership, 2012 WL 5048854 (N.D.Ill. 2012), Judge Guzman found that an in pro per Plaintiff's TCPA claim against his cell phone carrier survived an FRCP 12b6 Motion arising out of autodialed debt collection calls placed by his creditor to his cell phone. Verizon claims the TCPA claims against it must fail because it cannot be held liable for… Read More

In Chesbro v. Best Buy Stores, L.P., --- F.3d ----, 2012 WL 4902839 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit found that ‘robo-dialed’ informational calls can be telemarketing calls under the TCPA.  The facts were as follows: Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated… Read More

In Meyer v. Portfolio Recovery Associates, LLC--- F.3d ----, 2012 WL 4840814 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit affirmed a certification of a TCPA class action.  Portfolio Recovery Associates, LLC (PRA) appealed the September 14, 2011 district court order granting Jesse Meyer's motion for a preliminary injunction and provisional class certification. Meyer's complaint alleged that… Read More

In Owners Ins. Co. v. European Auto Works, Inc., --- F.3d ----, 2012 WL 4052406 (8th Cir. 2012), the Court of Appeals for the Eighth Circuit found insurance coverage for a TCPA unsolicited fax case under the insured’s standard form CGL policy. Owners Insurance Company and Auto–Owners Insurance Company brought this declaratory judgment action seeking a ruling that their insurance… Read More

  In Leyse v. Clear Channel Broadcasting Inc., --- F.3d ----, 2012 WL 3854783 (6th Cir. 2012), the Court of Appeals gave Chevron deference to the FCC’s ruling permitting the defendant’s advertisements.  In June 2005, a radio station owned by Clear Channel called Leyse's residential telephone number and delivered a prerecorded message advertising defendant’s radio services.  Leyse filed a class-action… Read More

In Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), Judge Tharpe held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA.  Judge Tharpe found that the consumer had to consent to be ‘robo-called’. In this putative class action brought pursuant to the Telephone… Read More

In Brennan v. National Action Financial Services, Inc., 2012 WL 3888218 (E.D.Mich. 2012), Judge Cleland granted leave to amend to allow individual officers of the debt collection agency to be named to the lawsuit as defendants under the TCPA. It is unsettled as to whether officers can be held personally liable under section 217 of the TCPA. The few courts… Read More

In Harrier v. Verizon Wireless Personal Communications LP, 2012 WL 3655355 (M.D.Fla. 2012), Judge Moody addressed a petition to arbitrate a TCPA claim.  Plaintiff sued Verizon for emailing her to collect a debt after she received a bankruptcy discharge on Verizon's debt.  Verizon moved to compel arbitration.  Judge Moody denied the petition, holding: Harrier alleges that despite the bankruptcy discharge, Verizon called… Read More

In Hoover v. Monarch Recovery Management, Inc., 2012 WL 3638680 (E.D.Pa. 2012), Judge Gardner allowed a telephonic harassment case to proceed, but dismissed an TCPA “unintended recipient” case based on Meadows as to land-line calls, deferring to the FCC on the subject.  On the harassment case, Judge Gardner found that Plaintiff stated a claim for calls, on average, ten times per… Read More

In Thomas v. Taco Bell Corp., --- F.Supp.2d ----, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case. Section 227(b)(1)(A)(iii) of the TCPA provides as follows:  It shall be unlawful for any person within the United States, or any person outside the United States… Read More

In Martin v. Leading Edge Recovery Solutions, LLC, 2012 WL 3292838 (N.D.Ill. 2012), Judge Lefkow found that a TCPA Plaintiff stated Article III standing under the ‘damages’ pleaded. Defendants argue that “injury in fact” should be equated with “actual damages,” and that plaintiffs' failure to allege actual damages indicates that they lack standing. Leading Edge asserts that plaintiffs must allege… Read More

In Obremski v. Springleaf Financial Services, Inc., 2012 WL 3264521 (M.D.Fla. 2012), Judge Hernandez-Covington ordered a consumer’s TCPA claim to arbitration, finding that the TCPA claim along with the other allegations fell within the scope of the arbitration clause. Here, the Court finds that Obremski's claims “arise from” or “relate to” the Agreement, as they are all based upon allegations… Read More

In Torres v. National Enterprise Systems, Inc., 2012 WL 3245520 (N.D.Ill. 2012), Judge Der-Yeghiayan found a TCPA penalty-only lawsuit still conferred Article III ‘case-or-controversy’ jurisdiction over the case. NES argues that this court lacks subject matter jurisdiction over the TCPA claim based upon NES's contention that Torres lacks standing to bring a TCPA claim. Article III of the federal Constitution… Read More

In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS.  Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More

We had hoped the issue would be addressed by the Supreme Court (as to RESPA) in Edwards v. First American Corp. 610 F.3d 514 (9th Cir. 2010), but SCOTUS dismissed cert. as improvidently granted.  So, the district court in Smith v. Microsoft Corp. 2012 WL 2975712 (S.D.Cal. 2012) addressed the issue whether a TCPA Plaintiff who otherwise had suffered no… Read More

The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden.  The unpublished decision dealt with whether the District Court erred in remanding the… Read More