TCPA

In Schaevitz v. Braman Hyundai, No. 1:17-cv-23890-KMM, 2019 U.S. Dist. LEXIS 48906 (S.D. Fla. Mar. 25, 2019), Judge Moore found that direct-to-voicemail call technology placed a “call” under the TCPA.  The facts were as follows: Major Advertising, LLC, on behalf of Defendant, transmitted an unsolicited pre—recorded voicemail message (the "Message") to Plaintiff's cellular telephone, which stated as follows: Hi, this… Read More

In Frank v. Gaos, the SCOTUS today placed further standing impediments to privacy and other purely statutory/no damages class actions, finding, following objections to the class action settlement, that the case should be remanded to determine standing under Spokeo.  The background facts were as follows: Three named plaintiffs brought class action claims against Google for alleged violations of the Stored Communications Act.… Read More

In Folkerts v. Seterus, Inc., No. 17 C 4171, 2019 U.S. Dist. LEXIS 42347 (N.D. Ill. Mar. 15, 2019), Judge Zee found that manually dialed calls did not involve the use of an ATDS under the TCPA. Plaintiffs have failed to point to any evidence that either SynTelate or the manual phone has that capacity. Certainly, once the Avaya Proactive… Read More

SCOTUS is using a TCPA case to decide whether the Hobbs Act requires district courts to accept the FCC’s pronouncements on the TCPA in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., Docket No. 17-1705.  On November 13, 2018, the SCOTUS granted certiorari after the Court of Appeals for the Fourth Circuit vacated a district court opinion on what… Read More

The Court should have just denied class cert.  But, having already certified a class, the Court had to then wrestle with a class notice with regard to an unascertainable class.  In Lavigne v. First Cmty. Bancshares, Inc., No. 1:15-cv-00934-WJ/LF, 2019 U.S. Dist. LEXIS 37724 (D.N.M. Mar. 7, 2019), Judge Johnson ignored those errors in the process and allowed a “reverse-lookup”… Read More

In Duran v. La Boom Disco, Inc., No. 17-cv-6331 (ARR) (CLP), 2019 U.S. Dist. LEXIS 30012 (E.D.N.Y. Feb. 25, 2019), Judge Duran sua sponte granted summary judgment to a TCPA defendant based on its absence of use of a ATDS. The Second Circuit, however, only analyzed the meaning of "capacity" under "the statutory language itself." As discussed earlier, the court… Read More

In Chinitz v. NRT W., Inc., No. 18-cv-06100-NC, 2019 U.S. Dist. LEXIS 27134 (N.D. Cal. Feb. 20, 2019), Judge Cousins denied a motion to dismiss a TCPA class action that asserted that pre-recorded calls violated the TCPA. Applying the prerecorded message rule turns on the purpose of the message, "not on the caller's characterization of the call." Chesbro, 705 F.3d at… Read More

In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA.  The facts alleged were as follows: The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management,… Read More

In Moser v. Health Insurance Innovations, Inc., No. 17CV1127-WQH(KSC), 2018 WL 6735710 (S.D. Cal. 2018), the District Court denied a TCPA defendant’s motion to allow an inspection of the plaintiff’s electronic device(s).   “Forensic examination is generally regarded as a drastic step....” Motorola Solutions., Inc. v. Hytera Commc’ns Corp., 314 F. Supp. 3d 931, 939 (N.D. Ill. 2018). . . . Here,… Read More

In Wilson v. Babcock Home Furniture, No. 8:17-C-02739-T-02AAS, 2018 WL 6660029 (M.D. Fla. December 19, 2018), Judge Jung denied class certification in a TCPA “wrong-number” class due to lack of ascertainability or common questions of law/fact. At the most fundamental level, the parties’ experts dispute the precise amount of “wrong numbers.” Based on Plaintiff’s analysis, Defendant made 8,253 calls marked… Read More

In Richardson, et. al., v. Verde Energy USA, Inc., Civ. No. 15-6325, 2018 WL 6622996 (E.D. Pa. December 17, 2018), Judge Beetlestone declined to follow the 9th Circuit’s decision in Marks, and found that Defendants predictive dialer was not an ATDS under the TCPA. A careful parsing of ACA International indicates that the invalidation of the 2015 Order necessarily invalidated… Read More

In Suriano v. French Riveria Health Spa, Inc., Civ. No. 18-9141, 2018 WL 6702749 (E.D. La. December 20, 2018), Judge Lemmon found that text messages were information only and not advertisements. Therefore, the sender did not violate the TCPA. At the outset, messages one, two, and five are plainly informational in nature. The first (sent the day after plaintiff joined)… Read More

In Gonzalez v. Ocwen Loan Servicing, LLC., 2018 WL 6653297, at *1–2 (M.D.Fla., 2018), the District Court denied a TCPA Plaintiff's request for an on-site inspection of the Defendant's facilities. Plaintiff moves to compel an on-site inspection of Defendant’s telephone dialing system. Plaintiff states that such an inspection pursuant to Fed. R. Civ. P. 34(a) is necessary because Plaintiff’s burden… Read More

In Phan v. Agoda Company PTE, Ltd., 2018 WL 6591800, at *4–8 (N.D.Cal., 2018), Judge Freeman granted summary judgment against a TCPA plaintiff, finding that text messages that she received were not advertisements. Though a claim under the TCPA has three elements, Agoda does not dispute that Phan satisfies the first two elements of the TCPA claim—that Agoda sent text… Read More

In Brodsky v. HumanaDental Insurance Co., 2018 WL 6295126, at *5–6 (7th Cir. 2018), the Court of Appeals for the Seventh Circuit denied class certification in a TCPA Blast-Fax case. We agree with the D.C. Circuit (and the Sixth and Ninth) that, at a minimum, it is necessary to distinguish between faxes sent with permission of the recipient and those… Read More

In Supply Pro Sorbents, LLC, v. RingCentral, Inc., No. 17-16528, 2018 WL 6068590 (9th Cir. Nov. 16, 2018), the Court of Appeals for the Ninth Circuit in an unpublished case affirmed the dismissal of a TCPA claim against an online fax service. Defendant RingCentral, Inc. (“RingCentral”) operates an online service that allows its customers to send faxes using a cover sheet… Read More

In Hatuey v. IC System, Inc., Civ. No. 1:16-CV-12542-DPW, 2018 WL 5982020 (D.Mass. Nov. 14, 2018), Judge Woodlock granted summary judgment to a debt collector on FDCPA and TCPA claims. On the FDCPA claim, the Court held that a cease and desist with respect to one account did not operate with respect to a second account. Although both the calls in… Read More

In Roark v. Credit One Bank, N.A., Defendant., 2018 WL 5921652 (D.Minn., 2018), Judge Magnuson found that no ATDS was used by a caller under post-ACA standards. Roark is incorrect that ACA Int’l has no bearing on previous FCC rulings that determined that predictive dialing systems are autodialers. The D.C. Circuit in fact rejected this very argument. “According to the [FCC],… Read More

In N.L., an infant by his mother and natural guardian Sandra Lemos v. Credit One Bank, N.A., et.al., (No. 2:17-CV-01512-JAM-DB), 2018 WL 5880796 (E.D. Cal. November 8, 2018), Judge Mendez denied Summary Judgment to a caller under the TCPA and Rosenthal Act. The facts were as follows: A customer of Credit One, D.V., provided a phone number ending in -9847… Read More

In Clark v. FDS Bank, 2018 WL 5830421, at *1–5 (M.D.Fla., 2018), Judge Mendoza ordered sweeping file-review discovery against a TCPA Defendant, expressing skepticism of the Defendant's claim that a file-by-file review would be required and the expense would be cost-prohibitive. Plaintiff wants to know the following information about collection calls made by Defendants during a four year period: (1)… Read More