TCPA

In Panzarella v. Solutions, No. 18-3735, 2020 U.S. Dist. LEXIS 104746 (E.D. Pa. June 15, 2020), Judge Tucker granted summary judgment to a TCPA defendant on the basis that no ATDS was used under the TCPA. Plaintiffs, in arguing that the ININ system is an ATDS, point to the ININ user manual and a declaration from an expert, Randall Snyder.… Read More

In N. L. v. Credit One Bank, N.A., Nos. 19-15399, 19-15938, 2020 U.S. App. LEXIS 17434 (9th Cir. June 3, 2020), the Court of Appeals for the 9th Circuit followed Soppet and Osorio decisions regarding calls to recycled to cellular telephones. Credit One also attempts to draw support from certain orders of the FCC, which has authority to promulgate regulations implementing… Read More

In Grant v. Regal Auto. Grp., No. 8:19-cv-363-T-23JSS, 2020 U.S. Dist. LEXIS 91897, at *7 (M.D. Fla. May 27, 2020) , the District Court certified a 'ringless voicemail' TCPA class. The plaintiff proposes administratively feasible methods for ascertaining class members. First, the plaintiff aims to use third-party records, which should determine the scope of the potential class with precision. Although… Read More

In Wright v. USAA Sav. Bank, No. 2:19-cv-00591 WBS CKD, 2020 U.S. Dist. LEXIS 90576 (E.D. Cal. May 21, 2020), Judge Shubb found no revocation of consent under the TCPA where the consumer purposefully mailed the revocation letter to the wrong address. Under the facts presented here, no reasonable trier of fact could find that plaintiff used reasonable means to… Read More

In Calhoun v. FLRish, Inc., No. 19-cv-08212-JCS, 2020 U.S. Dist. LEXIS 84485, at *5-7 (N.D. Cal. May 13, 2020), Judge Spero stayed a TCPA pending the outcome of the SCOTUS' decision in Barr v. AAPC.  A number of other district courts have stayed TCPA cases claiming violations of the ATDS prohibition pending a decision in AAPC. See, e.g., Lacy v.… Read More

On May 6, the Supreme Court heard oral argument on the constitutionality of the TCPA in Barr v. American Association of Political Consultants Inc.  As oral argument was held by teleconference, a video transcript of the proceedings can be found at the link below.   https://www.youtube.com/watch?v=JK4ylRQTkwo   Read More

In Medley v. Dish Network, No. 18-13841, 2020 U.S. App. LEXIS 14052, at *13-18 (11th Cir. May 1, 2020) , the Court of Appeals for the Eleventh Circuit followed the Second Circuit's Reyes decision, finding that contractual consent cannot be revoked under the TCPA. Finally, Medley appeals the district court's ruling in favor of DISH on her TCPA claim. The… Read More

In Thompson v. Portfolio Recovery Assocs., No. 19-cv-62220-SINGHAL/Valle, 2020 U.S. Dist. LEXIS 72971, at *4-6 (S.D. Fla. Apr. 25, 2020), the District Court granted summary judgment to a debt collector in a TCPA case. A. The "Called Party".  From what can be gathered, it appears case law on the undefined term "called party" is rather thin. Nevertheless, PRA insists Plaintiff… Read More

In Navient Sols., LLC v. Law Offices of Jeffrey Lohman, No. 1:19-cv-461(LMB/TCB), 2020 U.S. Dist. LEXIS 65648, at *22-25 (E.D. Va. Apr. 14, 2020), Judge Brinkema allowed a number of claims, including RICO, to proceed arising from an alleged scheme to defraud a national student loan servicer through manufactured TCPA litigation and arbitration claims. Lastly, defendants argue that even if… Read More

In Duran v. La Boom Disco, Inc., No. 19-600-cv, 2020 U.S. App. LEXIS 10861, at *16-22 (2d Cir. Apr. 7, 2020), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Marks. The next question is whether the ExpressText and EZ Texting programs also have the second capacity required by the statute to be ATDSs—the "capacity… Read More

Amid the COVID-19 pandemic, the FCC met remotely on Tuesday March 31, 2020 and took the next step in implementing the TRACED Act. The TRACED Act was enacted on December 30, 2019, with the stated purpose of “helping to reduce illegal and unwanted robocalls” through numerous mechanisms. Along with other provisions directed at addressing robocalls, the TRACED Act directed the… Read More

The American Bankers Association, Consumer Bankers Association, AFSA, Credit Union National Association, Independent Community Bankers of America, Mortgage Bankers Association, and National Association of Federally Insured Credit Unions filed a petition for expedited declaratory ruling with the Federal Communications Commission. The petition seeks an expedited declaratory ruling confirming that phone calls and text messages placed by banks, credit unions, and… Read More

In DeCapua v. Metro. Prop. & Cas. Ins. Co., No. 18-590 WES, 2020 U.S. Dist. LEXIS 47695 (D.R.I. Mar. 18, 2020), Judge Smith granted a TCPA defendant’s motion to dismiss. The Court accepts the R&R's reasoning. See Glasser, 948 F.3d at 1312 ("Far from automatically dialing phone numbers, this system requires a human's involvement to do everything except press the… Read More

In Hagood v. Portfolio Recovery Assocs., LLC, No. 3:18-CV-1510-NJR, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. Mar. 19, 2020), Judge Rosenstengel followed the Gadelhak decision and granted summary judgment to a TCPA defendant, finding that no ATDS was used under the TCPA. Hagood argues that this definition of an ATDS should be construed to cover any device that automatically dials… Read More

In Northrup v. Innovative Health Ins., No. 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851, at *12-21 (M.D. Fla. Feb. 25, 2020), Judge Honeywell granted summary judgment to a TCPA defendant. The Eleventh Circuit's holding that a device qualifies as an ATDS only if it uses a random or sequential number generator resolved a large part of the consolidated appeals. One of… Read More

In Gadelhak v. AT&T, here, the Court of Appeals for the Seventh Circuit disagreed with the Ninth Circuit’s decision in Marks, finding that an ATDS requires that a system store or produce numbers using a random or sequential number generator. We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that “using a random… Read More

In Ewing v. Pollard, No. 19-CV-855-CAB-BGS, 2020 U.S. Dist. LEXIS 22659 (S.D. Cal. Feb. 10, 2020), Judge Bencivengo dismissed a TCPA case due to calls being manually dialed. This section of the TCPA prohibits "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing… Read More

In Beal v. Outfield Brew House, No. 2:18-cv-4028-MDH, 2020 U.S. Dist. LEXIS 22487 (W.D. Mo. Feb. 10, 2020), Judge Harpol granted summary judgment to a TCPA defendant, rejecting the 9th Cir.’s decision in Marks.   Plaintiff urges the Court to follow the Ninth Circuit's opinion, which found the statutory definition of an ATDS ambiguous and interpreted an ATDS to include devices… Read More

In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is. Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made… Read More

In Warciak v. Subway Rests., Inc., No. 19-1577, 2020 U.S. App. LEXIS 3487 (7th Cir. Feb. 5, 2020), the Court of Appeals for the Seventh Circuit said that Subway was not responsible under the TCPA for contractually participating in T-Mobile’s text message campaign advertising “T-Mobile Tuesdays”. After reviewing the record, we agree with the district court that Warciak's complaint failed… Read More