In Moser v. Health Ins. Innovations, Inc., No. 17-cv-1127-WQH-KSC, 2019 U.S. Dist. LEXIS 132790 (S.D. Cal. Aug. 2, 2019), Judge Hayes certified a TCPA class. Under the TCPA, each plaintiff was injured when an autodialed or prerecorded call was sent to their wireless or residential phone. Whether the autodialed or prerecorded call came from a device located in the offices… Read More
In Izor v. Abacus Data Sys., No. 19-cv-01057-HSG, 2019 U.S. Dist. LEXIS 130865, at *6-9 (N.D. Cal. Aug. 5, 2019), Judge Gilliam refused to stay a TCPA case under the Primary Jurisdiction doctrine. "The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of… Read More
In Shuckett v. DialAmerica Mktg., No. 17cv2073-LAB (KSC), 2019 U.S. Dist. LEXIS 127049, at *6 (S.D. Cal. July 29, 2019), Judge Burns dismissed a TCPA plaintiff's claim for lack of standing because the TCPA Plaintiff was not aware of the violative call at the time that it was made. Although the Court previously determined that Shuckett's missed call was a… Read More
In Golan v. FreeEats.com, Inc., No. 17-3156, 2019 U.S. App. LEXIS 21015 (8th Cir. July 16, 2019), the Court of Appeals for the Eighth Circuit reduced an aggregate TCPA verdict on due process grounds. The jury returned a verdict in favor of Dr. Leininger and the other defendants. The district court entered judgment against ccAdvertising based on its prior grant… Read More
In Picton v. Greenway Chrysler-Jeep-Dodge, No. 6:19-cv-196-Orl-31DCI, 2019 U.S. Dist. LEXIS 103796 (M.D. Fla. June 21, 2019), Judge Presnell allowed a TCPA claim to proceed based on “calls” placed by ringless technology. The So-called "ringless" voicemail technology allows advertisers to transmit recorded messages via the Internet directly to the voicemail box associated with a cellular telephone without causing the [*2] phone… Read More
In Snow v. Ge, No. 5:18-CV-511-FL, 2019 U.S. Dist. LEXIS 99760 (E.D.N.C. June 14, 2019), Judge Flanagan dismissed a TCPA text message case. Although the Fourth Circuit and courts within this circuit have not addressed the split between these courts and Marks, the court finds the Dominguez approach better comports with the plain language of the statue. The statute unambiguously… Read More
In Duguid v. Facebook, Inc., No. 17-15320, 2019 U.S. App. LEXIS 17675 (9th Cir. June 13, 2019), the Court of Appeals for the Ninth Circuit again addressed its prior decision in Marks on the subject of what constitutes use of an ATDS under the TCPA. Ruling on an appeal from a motion to dismiss, the Ninth Circuit Court of Appeals… Read More
In Espejo v. Santander Consumer United States, No. 11 C 8987, 2019 U.S. Dist. LEXIS 98445 (N.D. Ill. June 12, 2019), Judge Kocoras denied an automobile finance company’s summary judgment on whether they used an ATDS. The facts were as follows: The underlying facts in this case are detailed in our prior opinion,1 and the Court provides only a brief… Read More
In Lucoff v. Navient Sols., LLC, No. 18-60743-CIV, 2019 U.S. Dist. LEXIS 89879 (S.D. Fla. May 28, 2019), Judge McAlily found that a TCPA Plaintiff could not revoke contractually bargained for consent. The Eleventh Circuit has held that a consumer is "free to orally revoke any consent previously given" under the TCPA "in the absence of any [*11] contractual restriction to… Read More
In Mauthe v. Optum Inc., No. 18-2894, 2019 U.S. App. LEXIS 15742 (3d Cir. May 28, 2019), the Court of Appeals for the Third Circuit held that market surveys were not pretextual advertisements under the TCPA. Commercial entities conducting research sometimes do so by sending faxes. Under Mauthe's theory, these firms would violate TCPA's prohibition on the sending of an… Read More
In Eaton v. Midland Credit Mgmt., No. 16cv3025-MMA (MDD), 2019 U.S. Dist. LEXIS 82346 (S.D. Cal. May 15, 2019), Judge Anello held that TCPA/FDCPA claims survive a Plaintiff’s death. Additionally, the claims pleaded are not extinguished. Decedent asserted claims under the TCPA and FDCPA. See Doc. No. 1-1. The Ninth Circuit has recognized that claims under the [*3] FDCPA survive the… Read More
In Melvin v. Ocwen Loan Servicing LLC, No. 8:18-cv-1911-T-36SPF, 2019 U.S. Dist. LEXIS 74995, at *12-14 (M.D. Fla. May 3, 2019), Judge Honeywell found that a TCPA Plaintiff had adequately pleaded use of an ATDS. The Court is persuaded by the reasoning in Gonzalez and Adams and concludes that the portion of the 2003 FCC Order pronouncing that the TCPA… Read More
In Revitch v. Citibank, N.A., No. C 17-06907 WHA, 2019 U.S. Dist. LEXIS 72026, at *11-14 (N.D. Cal. Apr. 28, 2019), Judge Alsup denied class certification in a TCPA "wrong number" class action. District courts have split on the propriety of class certification in similar "wrong number" TCPA actions. Plaintiff heavily relies on a line of decisions that includes West… Read More
In Melito v. Eperian Mktg. Sols., Nos. 17-3277-cv (L), 17-3279-cv (Con), 2019 U.S. App. LEXIS 12945, at *16-20 (2d Cir. Apr. 30, 2019), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Van Patten and held that the District Court had jurisdiction to address a class action because the class representative had Article III standing under Spokeo. Experian contends… Read More
In Mauthe v. Nat'l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3d Cir. Apr. 17, 2019), the Court of Appeals for the Third Circuit found that a fax was not a solicitation for goods and services. Moreover, the fax did not tell Mauthe that he [*7] could purchase healthcare management services from defendant or direct him to a website… Read More
In Perez v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2019 U.S. Dist. LEXIS 58639, at *13-15 (N.D. Cal. Apr. 4, 2019), Judge Rogers addressed how the "good faith" defense interplays with the TCPA. With respect to plaintiff Perez, defendant may not assert that it acted in good faith in calling Perez and therefore is not liable under the TCPA to… Read More
In Gadelhak v. At&T Servs., No. 17-cv-01559, 2019 U.S. Dist. LEXIS 55200 (N.D. Ill. Mar. 29, 2019), Judge Chang dismissed a TCPA claim for absence of use of an ATDS. Because ACA International invalidated the Commission's prior orders defining the term ATDS—and also declined to articulate their own definition of the term—the Court moves on to interpreting the TCPA unburdened… Read More
In McCurley v. Royal Seas Cruises, Inc., No. 17-cv-00986-BAS-AGS, 2019 U.S. Dist. LEXIS 52173 (S.D. Cal. Mar. 27, 2019), Judge Bashant certified a TCPA-telemarketing class. In the wake of Van Patten and McKesson, it is clear that the evidence Royal offers as evidence of consent "strongly affects" the Court's predominance analysis. McKesson, 896 F.3d at 932; see also Makaron, 324… Read More
In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096 (S.D.N.Y. Mar. 28, 2019), Judge Swain found that a LiveVox system constituted an ATDS under the TCPA. The Court next turns to the question of whether the LiveVox system at issue in this case is a predictive dialer within the meaning of the FCC's… Read More
In Singer v. Las Vegas Ath. Clubs, No. 2:17-cv-01115-GMN-VCF, 2019 U.S. Dist. LEXIS 48838 (D. Nev. Mar. 25, 2019), Judge Singer found the Second Circuit’s Reyes decision incompatible with Ninth Circuit precedent. Preliminarily, the Court is bound by the Ninth Circuit's ruling in Van Patten. To the extent Reyes may serve as persuasive authority, the Court finds it cannot be… Read More
