The Ninth Circuit Court of Appeals recently held that, for purposes of the Telephone Consumer Protection Act of 1991 (TCPA), the scope of a consumer's consent depends on the transactional context in which it is given. Van Patten v. Vertical Fitness Group, LLC, Case No. 14-55980 (9th Cir. Jan. 30, 2017). Specifically, the court concluded that an "effective consent" is one that relates to the same subject matter for which the calls or text messages are being made. The court further established that while a consumer does have the ability to revoke consent, the revocation must clearly ...
On January 12, 2016, the Ninth Circuit affirmed the denial of class cert. in a Telephone Consumer Protection Act (TCPA), 47 USC 227 action on predominance and superiority grounds in the case Paul Gannon v. Network Telephone Services, Inc., et al., No. 13-56813, 2016 WL 145811 (9th Cir. Jan. 12, 2016). In Gannon, the plaintiff alleged that he called the defendants' phone sex service by accident, and quickly hung up. Nonetheless, plaintiff alleged that several weeks later he began receiving unsolicited text messages in violation of the TCPA. Defendants alleged incoming calls received ...
In Dzakula v. McHugh, No. 11-16404, 2013 WL 6483614 (9th Cir. Dec. 11, 2013), the U.S. Court of Appeals for the Ninth Circuit affirmed the dismissal of an action on the ground of judicial estoppel where the plaintiff failed to identify the action as an asset on her bankruptcy schedules. The plaintiff did not amend the bankruptcy schedules until after the defendant filed a motion to dismiss, leading the court to infer that her omission had not been inadvertent. Distinguishing its recent decision Ah Quin v. County of Kauai Department of Transportation, 733 F.3d 267 (9th Cir. 2013), the ...
In Murphy v. DirecTV, Inc., --- F.3d ---, 2013 WL 3889158 (9th Cir. July 30, 2013), consumers brought a putative class action against DirecTV and Best Buy alleging violations of California's Unfair Competition Law and the Consumer Legal Remedies Act. Plaintiffs claimed that defendants purported to sell receivers and DVRs when, in fact, they were leased to consumers on unfair terms. Defendants moved to compel plaintiffs' claims to arbitration and the U.S. District Court for the Central District of California denied their motion on the ground that Discover Bank v. Superior Court, 113 ...
In Schlegel v. Wells Fargo Bank, N.A., 2013 WL 3336727, (9th Cir. July 3, 2013), the Ninth Circuit held that Wells Fargo did not qualify as a "debt collector" under the Fair Debt Collection Practices Act ("FDCPA"), even though the mortgage debt it sought to collect was in default at the time it was assigned to Wells Fargo. The facts of this case are relatively simple. After the plaintiffs' defaulted loan was assigned to Wells Fargo, the plaintiffs entered into a loan modification agreement with Wells Fargo and proceeded to make payments under the agreement. However, Wells Fargo began ...