The Northern District of West Virginia, applying the FCC's May 9, 2013 Declaratory Ruling in Dish Network, LLC, 28 F.C.C.Rcd. 6574, recently held that "on behalf of" liability found in §227(c) (5) of the TCPA does not require a formal agency relationship, but can instead rely on principals of apparent authority and ratification to establish vicarious liability under the TCPA. In Mey v. Monitronics Int'l., ---F.Supp.2d---, 2013 WL 4105430 (N.D.W.Va. 2013), the plaintiff sued three defendants for violation of the Telephone Consumer Protection Act's prohibition against calls to ...
In Giovanniello v. ALM Media, LLC, No. 10-3854-CV, --- F.3d ---, 2013 WL 4016567 (2d Cir. Aug. 8, 2013), the Court of Appeals for the Second Circuit held that (1) the federal four-year statute of limitations applies to claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"); and (2) the tolling of the limitations period during the pendency of a putative class action ceases upon the initial denial of class status. In an earlier decision, the Second Circuit applied the state-law statute of limitations and affirmed the dismissal of the plaintiff's TCPA claim as ...
In Jamison v. First Credit Services, Inc., 2013 WL 3872171 (N.D. Ill. July 29, 2013), the U.S. District Court for the Northern District of Illinois denied a motion for reconsideration filed by Plaintiff. Plaintiff's motion asked the court to reconsider its earlier denial of class certification of a Telephone Consumer Protection Act ("TCPA") action. Jamison involves an alleged violation of the TCPA after a debt collector, acting on behalf of American Honda Finance Corporation, allegedly called Plaintiff's cellular telephone multiple times without consent. Plaintiff filed a ...
In Reed v. Chase Home Finance, LLC, --- F.3d ----, 2013 WL 3868079 (11th Cir. 2013), the Eleventh Circuit Court of Appeals evaluated one of the more recent additions to the Truth in Lending Act ("TILA"), 15 U.S.C. 1641(g), which requires a loan servicer to provide written notice of an assignment to the obligor. In Reed, the Plaintiff's claimed that Chase violated 1641(g) by failing to inform them that Chase had been assigned an interest in the Plaintiff's mortgage by virtue of an assignment of mortgage. However, the Eleventh Circuit affirmed the summary judgment entered in favor of ...
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 Keim v. ADF MidAtlantic, LLC, 12-80577-CIV, 2013 WL 3717737 (S.D. Fla. 2013), the Southern District of Florida granted a motion to dismiss a TCPA class action complaint, holding that the defendants' Rule 68 offer of full potential relief to the named plaintiff rendered said plaintiff's individual claims moot and, in turn, that the Court lacked subject matter jurisdiction over the claims. The plaintiff in Keim filed a class action complaint for statutory damages and injunctive relief under the Telephone Consumer Protection Act (the "TCPA") for sending unsolicited commercial ...
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 ...
In Grubb v. Portfolio Recovery Associates, LLC, No. 2:12-cv-301 (E.D. Tenn. July 10, 2013), the U.S. District Court for the Eastern District of Tennessee recently dismissed a Fair Debt Collection Practices Act ("FDCPA") claim against defendants for filing a false affidavit in a state collection lawsuit because the affidavit at issue clearly stated that it was only based on business records of the defendant. Furthermore, the court dismissed an additional FDCPA claim, which alleged that defendants sought an unauthorized rate of interest and attorneys' fees in their state court ...
In Brown v. DIRECTV, LLC, No. CV 12-08382, 2013 WL 3273811 (C.D. Cal. June 26, 2013), the U.S. District Court for the Central District of California held that Telephone Consumer Protection Act ("TCPA") claims based on collection calls were arbitrable since they related to the customer agreement. Plaintiff Joshua Brown filed suit against DIRECTV and others alleging violations of the TCPA based on automated collection calls on his account. DIRECTV moved to compel Brown's claims to arbitration. Brown ordered DIRECTV satellite service online and was presented with "DIRECTV Terms and ...
The Second Circuit Court of Appeal affirmed the dismissal of a Fair Debt Collection Practices Act ("FDCPA") claim brought by a non-debtor under the mootness doctrine after an offer of judgment conveyed orally in open court was rejected. In Doyle v. Midland Credit Management, Inc. ---- F. 3d ---, 2013 WL 3242148 (2d Cir. June 28, 2013), the Second Circuit held that an offer of judgment need not comply with the offer of judgment rule in order to render a case moot. Doyle filed suit against Midland alleging that Midland had harassed him, failed to disclose Midland was a debt collector, and made ...