TCPA

In Conrad v. General Motors Acceptance Corporation, here, Judge Godbey denied Plaintiff's Motion for Class Certification in a TCPA cellular telephone case, holding that issues of consent presented individualized inquiries.  Judge Godbey explained: Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both… Read More

In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden.  Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More

In Knutson v. Sirius XM Radio Inc., 2012 WL 1965337 (S.D.Cal. 2012), Judge Battaglia ordered a TCPA claim to arbitration, notwithstanding the consumer’s argument that arbitration would not afford him the ability to vindicate his TCPA rights as he would like. Judge Battaglia rejected the claim and ordered the matter to arbitration. Plaintiff asserts that if he is ordered to… Read More

In Gager v. Dell Financial Services, LLC 2012 WL 1942079 (M.D.Pa. 2012), Judge Mariani found irrelevant the whole debate over whether the TCPA requires revocation of consent to be called on a cellular telephone to be in writing or not.  Judge Mariani instead found that nothing in the TCPA allows consent, once given, to be revoked by the consumer.  Instead,… Read More

In Wilson v. Discover Bank, 2012 WL 1899539 (W.D.Wash. 2012), Judge Leighton exercised permissive supplemental jurisdiction over a counter-claim for the underlying $4,000 debt in a case filed under the TCPA.  Judge Leighton found that exercising jurisdiction over the debt collection claim did not impede enforcement of the consumer’s rights under the TCPA. Where supplemental jurisdiction exists, a district court… Read More

In Osorio v. State Farm Bank, F.S.B.--- F.Supp.2d ----, 2012 WL 1671780 (S.D.Fla. 2012), Judge Middlebrooks found that the debtor's consent to be called on her cell phone transferred to her co-habitating significant other, so as to eliminate liability under the TCPA. Applying the regulations promulgated by the FCC, Betancourt unequivocally provided her express consent that State Farm could call 8626… Read More

Previously, we reported on the Soppett v. Enhanced Recovery Appeal before the Court of Appeals for the Seventh Circuit.  The Court issued its decision today. In Soppett v. Enhanced Recover Company, LLC, here, the Court of Appeals for the Seventh Circuit held that ‘consent’ under the TCPA to call cellular telephones by autodialer means consent from the person subscribing to… Read More

In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message. The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is… Read More

In Linko v. American Educ. Services, 2012 WL 1439052 (M.D.Pa. 2012), Judge Jones found auto-dialed calls to residential landlines for purpose of debt collection exempt from the TCPA.  Judge Jones explained:   Plaintiffs contend that the Defendants violated the TCPA by contacting Plaintiffs on their residential telephone using prerecorded automated telephone messages without first obtaining prior express consent to do… Read More

  In Shupe v. JPMorgan Chase Bank of Arizona, 2012 WL 1344786 (D.Ariz. 2012), Judge Collins held that plaintiffs stated a claim under the TCPA.Judge Collins found that the consumers revoked the “Established Business Relationship” under the TCPA which otherwise permitted auto-dialed calls to their residential telephone number. The FCC has unequivocally stated that calls made solely for the purpose… Read More

In Soppet v. Enhanced Recovery, Co. 2011 WL 3704681 (N.D. Ill. 2011), Judge Kennelly held a debt collector liable under the TCPA where the original owner of the cellular telephone consented to be called on their cell phone.  When the cell number was transferred to another owner, however, the new owner began to receive calls, and sued under the TCPA. … Read More

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

In Pimental v. Google Inc., 2012 WL 691784 (N.D.Cal. 2012), Judge Rogers found that Google’s text messages to cellular telephones regarding its “disco” service pleaded facts sufficient to state a claim under the TCPA.  Google’s service was described as follows:   Text messaging allows cellular telephone subscribers to send and receive short messages, usually limited to 160 or so characters… Read More

In Meyer v. Portfolio Recovery Associates, LLC, (9th Cir. No. 1156600), the District Court had certified an F.R.C.P. Rule 23(b)(2) injunctive class under the TCPA. (Docket, Appellant's Brief, Appellant's Reply Brief)  The debt collector appealed, and the matter is fully briefed before the Court of Appeals for the Ninth Circuit.  Last week, the federal MDL transferred a number of cases… Read More

The FCC today issued its Final Telemarketing Sales Rule today.  As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More

In Cavero v. Franklin Collection Service, Inc. , 2012 WL 279448 (S.D.Fla. 2012), Judge Altonaga granted summary judgment to a debt collector on a TCPA claim arising out of calls to a cellular telephone by means of an autodialer.    To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell phone, without his “prior express consent,” using… Read More

The FCC announced its intention to address TCPA regulations at its open meeting scheduled for February 15, 2012. The Commission will consider a Report and Order that protects consumers from unwanted autodialed or prerecorded calls (“robocalls”) by adopting rules that ensure consumers have given prior express consent before receiving robocalls, can easily opt out of further robocalls, and will experience “abandoned” telemarketing calls only… Read More

In Mitchem v. Illinois Collection Services, Inc., here, the District Court granted Summary Judgment to a debt collector under the TCPA, finding that the debtor consented to receive calls on his cell phone by providing that number to the provider. Read More

In Ridley v. Union Bank, N.A., 2012 WL 160046 (S.D.Cal. 2012), Judge Sabraw rejected the argument that a defendant’s compliance with California’s autodialer law (PUC section 2872) exempted it from compliance with the TCPA.    Defendant argues Plaintiff has no private right of action under the TCPA for the alleged violations, and therefore cannot state a claim. The TCPA provides,… Read More

The Supreme Court issued the Mims v. Arrow Financial Services decision today.  According to the syllabus, the Supreme Court held: The TCPA’s permissive grant of jurisdiction to state courts does not deprive the U. S. district courts of federal-question jurisdiction over private TCPA suits. Pp. 7–18.  (a) Because federal law creates the right of action and provides the rules of… Read More