In Glasser v. Hilton Grand Vacations Company, LLC, (No. 18-14499), the Court of Appeals for the Eleventh Circuit held that the Court of Appeals for the Ninth Circuit got it wrong in Marks. After they each received over a dozen unsolicited phone calls, some about repaying a debt, others about buying vacation properties, Melanie Glasser and Tabitha Evans sued the… Read More
In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800, at *11-12 (D. Mass. Jan. 8, 2020), Judge Gorton granted summary judgment on a TCPA "re-assigned" number case, permitting a "reasonable reliance" defense. The First Circuit Court of Appeals has not addressed this issue and the district courts in this Circuit and other circuits that… Read More
In Cordoba v. DIRECTV, LLC, No. 18-12077, 2019 U.S. App. LEXIS 34146 (11th Cir. Nov. 15, 2019), the Court of Appeals for the 11th Circuit renewed the bite of Lujan’s ‘fairly traceable’ component of Article III standing, remanding to the District Court for it to re-do it’s analysis certifying a TCPA class against DIRECT TV. DIRECTV's second argument -- that class… Read More
In Dotson v. Ally Fin., No. 2:19-cv-2274, 2019 U.S. Dist. LEXIS 193764 (W.D. Tenn. Nov. 7, 2019), the District Court said that a TCPA defendant could not file a counter-claim in federal court against a TCPA Plaintiff. Nothing prevents Ally from suing Dotson in state court. A state court judgement may be used as a set-off to any judgment Dotson… Read More
In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2019 U.S. Dist. LEXIS 183886, at *9 (D. Mass. Oct. 23, 2019), Judge Gorton denied class certification of a TCPA wrong-number class. Implicit in Rule 23 is consideration of whether the identification of potential class members is "administratively feasible." Shanley v. Cadle, 277 F.R.D. 63, 67 (D. Mass. 2011). All… Read More
In Johnson v. Capital One Servs., LLC, No. 18-cv-62058-BLOOM/Valle, 2019 U.S. Dist. LEXIS 178160, at *3-4 (S.D. Fla. Oct. 15, 2019), Judge Bloom found a TCPA Plaintiff's handwritten call-logs to be admissible as a party-opponent admission. (For you trial lawyers out there, they probably could at least have been referred to under FRE 612 to refresh the witness' recollection, anyway).… Read More
In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More
In Ammons v. Diversified Adjustment Serv., No. 2:18-cv-06489-ODW (MAAx), 2019 U.S. Dist. LEXIS 175842, at *12-14 (C.D. Cal. Oct. 9, 2019) , Judge Wright held that LiveVox' manual dial requirement disqualified it from being an ATDS, and nothing in Marks changes that conclusion. The parties agree that all calls DAS placed to Ammons's 3436 Cell Phone used LiveVox HCI. (DSUF… Read More
In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found "use" of an ATDS adequately pleaded. In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at… Read More
In Sliwa v. Bright House Networks, No. 2:16-cv-235-FtM-29MRM, 2019 U.S. Dist. LEXIS 167805, at *56-63 (M.D. Fla. Sep. 27, 2019), the District Court denied class certification. Plaintiff identifies the following common questions of law or fact which he asserts will predominate over any individualized issues: whether (1) an automatic telephone dialing system or prerecorded voice technology was used; (2) Defendants'… Read More
In DeNova v. Ocwen Loan Servicing, LLC, No. 8:17-cv-2204-T-23AAS, 2019 U.S. Dist. LEXIS 163014 (M.D. Fla. Sep. 24, 2019), Judge Merryday overruled the Magistrate’s ruling that an Aspect dialing system was an ATDS. Denise DeNova alleges (Doc. 2) that between April 2013 and May 2016, Ocwen Loan Servicing, attempting to collect DeNova's delinquent mortgage, used an "Aspect predictive dialing system"… Read More
In Smith v. Premier Dermatology, No. 17 C 3712, 2019 U.S. Dist. LEXIS 152887 (N.D. Ill. Sep. 9, 2019), Judge Alonso found that no ATDS was used to send text messages and granted summary judgment against a TCPA Plaintiff. While this Court might quibble with the grammatical analysis of Pinkus in some particulars, it agrees with its central insight that… Read More
In Brown v. Ocwen Loan Servicing Llc, No. 8:18-cv-136-T-60AEP, 2019 U.S. Dist. LEXIS 151236, at *11-15 (M.D. Fla. Sep. 5, 2019), Judge Barber granted in part and denied in part summary judgment brought by a TCPA defendant, distinguishing between pre-recorded and non-prerecorded calls. Ocwen contends summary judgment on the Browns' TCPA claims is warranted because its Aspect dialer is not… Read More
In Berman v. Freedom Fin. Network, No. 18-cv-01060-YGR, 2019 U.S. Dist. LEXIS 150810, at *3 (N.D. Cal. Sep. 4, 2019), Judge Gonzalez-Rogers found no good faith defense to a TCPA claim. The alleged facts were as follows: In the instant action, plaintiff Daniel Berman, on behalf of himself and a putative class, alleges violations of the Telephone Consumer Protection Act… Read More
In Franklin v. Navient Corp., Civil Action No. 17-1640-RGA, 2019 U.S. Dist. LEXIS 150902, at *14-19 (D. Del. Sep. 5, 2019), the District Court declined to follow the Second Circuit's Reyes decision. The Court turns next to the calls placed [*15] to Plaintiff prior to the November 2015 TCPA amendment. The evidence of record indicates that in each of Plaintiff's deferment requests,… Read More
In Morgan v. On Deck Capital, No. 3:17-CV-00045, 2019 U.S. Dist. LEXIS 147757, at *3-4 (W.D. Va. Aug. 29, 2019), Judge Moon denied summary judgment to a TCPA defendant who argued that 'manual mode' of a dialer system disqualified the system from being an ATDS. The facts were as follows: Defendant On Deck Capital is an online lender that offers financing… Read More
In Pascal v. Concentra, Inc., No. 19-cv-02559-JCS, 2019 U.S. Dist. LEXIS 141400 (N.D. Cal. Aug. 20, 2019), Judge Spero confirmed that the TCPA affords no right to attorneys fees. It is undisputed that attorneys' fees are unavailable under the TCPA and Plaintiff has pointed to no source of authority that would allow him to recover attorneys' fees in this action.… Read More
In Gentleman v. Massachussetts Higher Educ. Assistance Corp., No. 16-cv-03096, 2019 U.S. Dist. LEXIS 135684 (N.D. Ill. Aug. 12, 2019), Judge Coleman granted summary judgment against a TCPA plaintiff because calls were not placed using an ATDS. Delta contends that summary judgment in their favor is warranted because there is no evidence to establish that Delta used an automatic telephone… Read More
In Lucoff v. Solutions, No. 18-CIV-60743-RAR, 2019 U.S. Dist. LEXIS 133577 (S.D. Fla. Aug. 7, 2019), Judge Ruiz granted summary judgment against a TCPA Plaintiff. Because the Arthur Settlement places contractual restrictions on revocation, Plaintiff's reliance on Osorio is erroneous. In Osorio, the court determined that consumers were "free to orally revoke any consent previously given" only "in the absence… Read More
In Smith v. Navient Sols., LLC, No. 3:17-191, 2019 U.S. Dist. LEXIS 131231 (W.D. Pa. Aug. 4, 2019), Judge Gibson granted summary judgment against a TCPA plaintiff. The Court agrees with the reasoning in these cases. Predictive dialers do not necessarily qualify as ATDSs under the plain language of the statute or the Third Circuit's guidance in Dominguez. To reiterate,… Read More
