In Chinitz v. Intero Real Estate Servs., No. 18-cv-05623-BLF, 2020 U.S. Dist. LEXIS 224999, at *8 (N.D. Cal. Dec. 1, 2020), Judge Freeman approved a class administration plan in a TCPA class action that included "reverse lookup". First, Intero objects to TransUnion running a reverse lookup on the bases that this method is not reasonably calculated to notify class members… Read More
In Neff v. Towbin Dodge LLC, No. 2:20-cv-00261-JAM-DMC, 2020 U.S. Dist. LEXIS 217045 (E.D. Cal. Nov. 18, 2020), Judge Mendez found that a TCPA Plaintiff properly sued in his home venue. The parties agree venue is not proper in the Eastern District of California under § 1391(b)(1), as neither Defendant is a resident of California. See FAC ¶¶ 7-10; Towbin's… Read More
In Frantz v. Factor, No. 20-cv-1012-MMA (KSC), 2020 U.S. Dist. LEXIS 213941 (S.D. Cal. Nov. 13, 2020), Judge Anello stayed a TCPA case pending the outcome of the Duguid decision by the SCOTUS. The Court described the split of authority succinctly. Under the TCPA, it is "unlawful for any person within the United States . . . (A) to make… Read More
In Weisbein v. Allergan, Inc., No. SA CV 20-0801 FMO (ADSx), 2020 U.S. Dist. LEXIS 208813 (C.D. Cal. Nov. 6, 2020), Judge Olguin refused to stay a TCPA case. Here, the competing interests affected by the proposed stay weigh in favor of plaintiff. The stay requested by defendants is indefinite. Although the Supreme Court has set oral argument for Duguid… Read More
In Trujillo v. Free Energy Sav. Co., No. 5:19-cv-02072-MCS-SP, 2020 U.S. Dist. LEXIS 205113, at *4-7 (C.D. Cal. Nov. 2, 2020), Judge Scarci denied a request to stay a pending TCPA matter. The first factor weighs against granting a stay. Fact discovery is set to conclude in about six weeks, expert discovery is set to conclude in April 2021, and… Read More
In Yates v. Checkers Drive-in Rest., Inc., No. 17 C 9219, 2020 U.S. Dist. LEXIS 205241, at *8 (N.D. Ill. Nov. 3, 2020), Judge Harjani ordered class notice be given by text message in a TCPA class action. Defendants, on the other hand, contend that "providing notice via text would not be appropriate in this case, as it would potentially… Read More
In Nalan v. Access Fin., Inc., No. 5:20-cv-02785-EJD, 2020 U.S. Dist. LEXIS 198836 (N.D. Cal. Oct. 23, 2020), Judge Davila agreed to exercise supplemental jurisdiction over a counterclaim on the debt where the main action was a TCPA claim. The Ninth Circuit has not definitively ruled on the question of whether supplemental jurisdiction under § 1367 can cover permissive counterclaims.… Read More
In Aleisa v. Square, Inc., No. 20-cv-00806-EMC, 2020 U.S. Dist. LEXIS 188024 (N.D. Cal. Oct. 9, 2020), Judge Chen stayed an action pending SCOTUS’ review of what constitutes an ATDS. All three of the Landis factors weigh in favor of granting Square's motion to stay the proceedings pending the Supreme Court's forthcoming decision in Duguid II. First, and most importantly,… Read More
In Camacho v. Hydroponics, Inc., No. EDCV 20-980 JGB (KKx), 2020 U.S. Dist. LEXIS 174379 (C.D. Cal. Sep. 22, 2020), Judge Bernal denied a stay in a TCPA case. The TCPA defines an ATDS as "equipment which has the capacity (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to… Read More
In Jensen v. Roto-Rooter Servs. Co., No. C20-0223-JCC, 2020 U.S. Dist. LEXIS 151256 (W.D. Wash. Aug. 20, 2020), Judge Coughenour stayed a TCPA case pending SCOTUS’ review of what constitutes an ATDS. Defendant moves to continue the stay in this case because the Supreme Court's decision in Duguid will resolve the circuit split of what constitutes an auto dialer under… Read More
In Komaiko v. Baker Techs., No. 19-cv-03795-DMR, 2020 U.S. Dist. LEXIS 143953 (N.D. Cal. Aug. 11, 2020), Magistrate Judge Ryu denied a stay in a TCPA case pending SCOTUS review of the Duguid case. At issue in Duguid is the definition of ATDS in the TCPA, and specifically whether that definition "encompasses any device that can 'store' and 'automatically dial' telephone… Read More
In Mey v. DIRECTV, LLC, No. 18-1534, 2020 U.S. App. LEXIS 24993 (4th Cir. Aug. 7, 2020), the Court of Appeals for the 4th Circuit enforced an arbitration clause in a TCPA class action. DIRECTTV, who was an affiliate of AT&T, was entitled to enforce the agreement. As an initial matter, we conclude—as the district court appears to have acknowledged… Read More
In Vargas v. Vehicle Sols. Corp., No. 8:19-cv-1109-T-60AAS, 2020 U.S. Dist. LEXIS 141526 (M.D. Fla. Aug. 7, 2020), Judge Barber found standing under the TCPA. The facts were as follows: The son of Plaintiff Yajairis Vagas incurred a debt to Defendant Vehicle Solutions Corp. ("VSC") to purchase a car. Because her son worked for Plaintiff's company, Plaintiff made payments on… Read More
In Caplan v. Budget Van Lines, No. 2:20-CV-130 JCM (VCF), 2020 U.S. Dist. LEXIS 136865 (D. Nev. July 31, 2020), Judge Mayan denied a ringless technology defendant’s motion to dismiss a TCPA claim The second issue is whether RVMs constitute calls under the TCPA. RVM technology allows a message to be placed in a recipient's voicemail without the recipient's… Read More
In Allan v. Pa. Higher Educ. Assistance Agency, No. 19-2043, 2020 U.S. App. LEXIS 23935 (6th Cir. July 29, 2020), the Court of Appeals for the Sixth Circuit followed Mark’s interpretation of the TCPA as to what constitutes an auto dialer. Here, again, we agree with the Second and Ninth Circuits [*15] that the structure and context of the autodialer ban support… Read More
In Molinari v. Fin. Asset Mgmt. Sys., No. 18 C 1526, 2020 U.S. Dist. LEXIS 134045 (N.D. Ill. July 29, 2020), Judge Ellis denied class certification in a TCPA/FDCPA class action Under Rule 23(a)(2), a party seeking class certification must show commonality by identifying "questions of law or fact common to the class." Fed. R. Civ. P. 23(a)(2). "The key… Read More
In Ruiz v. Hunt & Henriques, No. D075286, 2020 Cal. App. Unpub. LEXIS 4847 (July 29, 2020), in the context of an anti-SLAPP motion brought by the debt collection law firm, the Court of Appeal found that a debtor need not dispute the debt to challenge the amount of the debt stated. Hunt alternatively argues that Ruiz cannot recover under… Read More
We wrote about this issue last year, although the issue remains somewhat unsettled. (https://www.severson.com/hyman-s-j-and-figueroa-k-contribution-and-indemnity-for-wrong-number-calls-under-the-telephone-consumer-protection-act-vol-73-conf-cons-fin-l-q-84-fall-2019/) In Anthony v. Progressive Leasing, No. 1:19-cv-04431-TWP-MJD, 2020 U.S. Dist. LEXIS 105846, at *5-8 (S.D. Ind. June 16, 2020), the District Court declined to allow a counter-claim for indemnity against a TCPA's Plaintiff's spouse who allegedly had provided the number. In her complaint, Plaintiff brings a… Read More
In Walker v. Westlake Fin. Servs., No. 19 C 6921, 2020 U.S. Dist. LEXIS 105794 (N.D. Ill. June 17, 2020), Judge Kendall permitted an FDCPA/TCPA defendant to file a counter-claim on the debt back against the Plaintiff. Walker, however, takes too narrow a view and disregards several relevant facts. Here, Westlake's claim involves "the same parties, contracts, and course of… Read More
In Fitzhenry v. Safe Sts. United States Llc, No. 5:19-CV-394-BO, 2020 U.S. Dist. LEXIS 105364 (E.D.N.C. June 16, 2020), the District Court permitted “other complaints” discovery in a TCPA action. Finally, Safe Streets objects to producing lists of past TCPA litigation or complaints, but such information is plainly related to willfulness and the issue of damages and is thus discoverable.… Read More
