In Silbaugh v. Viking Magazine Services, 2012 WL 76889 (N.D.Ohio 2012), the District Court certified a class under the TCPA related to text-messages sent to cellular telephones. The facts were as follows. Plaintiff Andao Silbaugh sued Viking Magazine Services under the TCPA, which prohibits the making of a phone call to a cellular telephone using an automatic telephone dialing system… Read More
In Glen Ellyn Pharmacy, Inc. v. Meda Pharmaceuticals, Inc., 2011 WL 6156800 (N.D.Ill. 2011), Judge Gotschall rejected a TCPA defendant's claim for contribution/indemnity under the TCPA, explaining: Instead, the TCPA itself strongly suggests that Congress never intended to create such a right. For instance, the TCPA contemplates treble damages, see 47 U.S.C. § 227(b)(3), which indicates that Congress had no intent to include… Read More
The National Association of Attorneys General submitted a letter brief opposing the Mobile Informational Call Act (HR 3035) that would make amendments to the TCPA. NAAG HR 3035 letter Read More
The Subcommittee on Communications and Technology held a hearing on Friday, November 4, 2011, at 9:00 a.m. in 2123 Rayburn House Office Building on “H.R. 3035, The Mobile Informational Call Act of 2011.” The link below includes a video of the testimony, a Background Memo and an Opening statement from Communications and Technology Subcommittee Chairman Greg Walden. Read More
The Supreme Court will resolve whether federal courts have jurisdiction to hear cases brought under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). The circuit courts are split on whether jurisdiction exists for private TCPA claims. Mims v. Arrow Fin. Servs., LLC, 2010 WL 4840430 (11th Cir. Nov. 30, 2010) cert granted Mims v. Arrow Financial Services, LLC, 131 S.Ct.… Read More
In Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y 2011), Judge Skretny held that triable issues of fact on consent and revocation of same prevented granting of summary judgment arising out of calls containing a prerecorded message made to a consumer’s cellular telephone. As to the issue of consent, Judge Skretny held that consent can be given at any… Read More
In Frausto v. IC System, Inc., 2011 WL 3704249 (N.D.Ill. 2011), Judge Zagel held that a debt collector was entitled to rely on the ‘consent’ obtained by the original creditor to call a consumer on his cellular telephone under the TCPA. The dispositive issue here is the application of the “prior express consent” defense to the facts of this case.… Read More
In Zehala v. American Exp., 2011 WL 4484297 (S.D.Ohio 2011), Judge Watson distinguished between ADAD calls to land lines versus cellular telephones, finding that Plaintiff failed to state a claim as to the former but had properly pleaded a claim as to the latter. As to land lines, Judge Watson found no claim because an established business relationship existed:… Read More
In Giovanniello v. ALM Media, LLC, --- F.3d ----, 2011 WL 4907382 (2d Cir. 2011), the Court of Appeals for the Second Circuit held that the TCPA borrows state-law statutes of limitations because the TCPA permits causes of action only where otherwise permitted by state law. In sum, while a TCPA diversity action is somewhat unusual in that the… Read More
In Sterling v. Mercantile Adjustment Bureau, LLC, 2011 WL 4915813 (W.D.N.Y. 2011), Judge Arcara held that a TCPA plaintiff who refused to plead the cellular telephone number at issue in the Complaint still stated a claim, and survived a Rule 9 Motion for More Definite Statement. Judge Arcara stated the factual background as follows: This case concerns allegations that… Read More
A copy of the new legislation can be found here. ACA International, the association of credit and collection professionals, issued the following press release regarding the legislation: ACA International, the association of credit and collection professionals, proudly supports today’s introduction of the Mobile Informational Call Act of 2011, and the leadership of its authors, Congressmen Lee Terry (R-NE), Edolphus Towns… Read More
In Grant v. Capital Management Services, L.P., 2011 WL 3874877 (9th Cir. 2011), the Court of Appeals held that the District Court erred in the quantum of proof it required the Defendant to demonstrate in removing a TCPA case under CAFA. Because neither the size of the proposed class nor the total amount in controversy was apparent from the… Read More
In Charvat v. NMP, LLC, --- F.3d ----, 2011 WL 3805618 (6th Cir. 2011), the Court of Appeals held that a TCPA plaintiff can not recover multiple damages on a per call basis for the same harm under the TCPA, but can recover multiple damages on a per call basis when the subsections sued on target different harms. Charvat… Read More
See Frydman v. Portfolio Recovery Associates (N.D. Ill. 2011) 2011 WL 2560221. Read More
In Griffith v. Consumer Portfolio Serv., Inc., 2011 WL 3609012 (N.D.Ill. 2011), Judge Grady denied an automobile finance company’s motion for summary judgment on the sole issue of whether it’s dialing system was an ADAD within the meaning of the TCPA. The finance company’s system was described as follows: The named plaintiffs in this case, Roslyn Griffith and Jerret… Read More
In Desai v. ADT Sec. Services, Inc., 2011 WL 2837435 (N.D.Ill. 2011), Judge Buklow held that the TCPA can impose respondeat superior liability. First, ADT argues that it can be held liable only if it “made” or “initiated” the calls in question. As ADT points out, the TCPA provisions invoked by plaintiffs make it unlawful (subject to exceptions not… Read More
In First Nat. Collection Bureau, Inc. v. Walker, --- S.W.3d ----, 2011 WL 2716778 (Tex. App. 2011), the Texas Court of Appeal affirmed a $147,000 jury verdict against a debt collector based on willful violations of the TCPA. The facts were as follows: Walker filed this lawsuit on June 30, 2008. In her live pleading, Walker contended FNCB made calls… Read More
In Local Baking Products, Inc. v. Kosher Bagel Munch, Inc., --- A.3d ----, 2011 WL 2793214 (N.J.Super.A.D. 2011), the New Jersey Court of Appeal affirmed denial of a TCPA class action in a junk fax case, after surveying the dozens state and federal decisions on TCPA class certification. The Court of Appeal explained: While no New Jersey case has been… Read More
In Anderson v. AFNI, Inc., 2011 WL 1808779 (E.D. Pa. 2011), the Court held in a landline case, rejecting Leyse, holding that § 227(b)(3) grants standing to any “person or entity,” and therefore any “called party” has standing under the statute, including wrong number calls. Read More
In Daniel v. West Asset Management, Inc., 2011 WL 2412950 (E.D.Mich. 2011), Judge Lujan rejected a TCPA claim against a debt collector based on land-line calls to a debtor. “Plaintiff Rochelle Daniel filed her third amended complaint against Defendant West Asset Management, Inc. Among its twenty-two counts, the complaint asserts fourteen counts of vio-lating the Telephone Consumer Protection Act (“TCPA”)… Read More
