On April 13, 2020, the District Court of Kansas in Hampton v. Barclays Bank Delaware, No. 18-4071-DDC-ADM, 2020 WL 4698476 (D. Kan. Aug. 13, 2020), joined the Seventh and Eleventh Circuits in holding that devices that exclusively dial numbers stored in a customer database do not qualify as autodialers under the TCPA.
The Plaintiff, Anthony Hampton ("Plaintiff"), asserted numerous claims against multiple defendants, including a TCPA claim against Marketplace Loan Grantor Trust, Series 2016-LD1's ("Marketplace"). Specifically, Plaintiff claimed Marketplace violated the ...
This summer has been jam-packed with Telephone Consumer Protection Act (TCPA) developments. The Federal Communications Commission (FCC) issued a decision finding that peer-to-peer text messaging systems were exempt from the statue’s reach, using certain language that may be helpful in arguing to exclude other types of technology.[1] The U.S. Supreme Court declared the statute unconstitutional in Barr v. American Association of Political Consultants, Inc.,[2] only to determine that the unconstitutional provision was severable, thus saving the statute and, in fact ...
The Fifth Circuit Court of Appeals may now have to decide where it stands on the ATDS issue. On May 20, 2020, Judge Lee Yeakel of the United States District Court for the Western District of Texas issued an opinion in Suttles v. Facebook, Inc., Case No. 1:18-cv-01004 (W.D. Tex. May 20, 2020), where he concluded that a dialing system is not an Automatic Telephone Dialing System (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”) if it does not produce numbers. A copy of the opinion can be read here.
Three circuit courts have previously held that the definition of an ATDS ...
Those of us who have been litigating the Telephone Consumer Protection Act (“TCPA”) have spent the better part of the last decade trying to determine what constitutes an automated telephone dialing system (“ATDS”). The answer seemed clear to many when the statute was enacted in 1991 because telemarketers were the focus, cell phones were expensive and uncommon and the plain language of the statute defined an ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called using a random or sequential number generator; and (B) to dial such ...
A .pdf copy of the Glasser opinion can be found here.
The Telephone Consumer Protection Act (“TCPA” or the “Act”) has limited telephone calls that can be placed using certain automated equipment since 1991. However, since passage of the Act there has been considerable debate about the type of automated equipment subject to the Act’s restrictions. The TCPA specifically restricts the use of any “automated telephone dialing system” ("ATDS"). The statute defines ATDS as “equipment which has the capacity—(A) to store or produce telephone numbers to be called using a ...
In addressing cross motions for summary judgment in BONNIE BROWN & JAMES BROWN, Plaintiffs, v. OCWEN LOAN SERVICING LLC, Defendant., 8:18-CV-136-T-60AEP, 2019 WL 4221718 (M.D. Fla. Sept. 5, 2019) (“Browns v. Ocwen”) on 9/5/2019, the United States District Court for the Middle District of Florida (“District Court”) determined that the Aspect dialer used by Defendant, Ocwen Loan Servicing LLC (“Ocwen”), was not an automatic telephone dialing system (“ATDS”) under the Telephone Consumer Protection Act, 47 U.S.C.A. § 227 (“TCPA”). Plaintiff Bonnie Brown ...
In Salcedo v. Hanna, 17-14077, the Eleventh Circuit Court of Appeals rejected a consumer’s allegations that his receipt of a single text message was sufficient to maintain a claim under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et al. Salcedo filed suit as representative of a putative class consisting of former clients of attorney Alex Hanna. The class was composed of individuals who allegedly received unsolicited text messages from Mr. Hanna and his law firm over a four-year period. Specifically, Salcedo alleged that he received one multimedia text ...
Although courts across the country agree that “a plaintiff class should not be certified unless membership therein is ‘adequately defined and clearly ascertainable,’” the extent of what a plaintiff must provide to satisfy this “implicit requirement” to certification varies among circuit courts. See Ocwen Loan Servicing, LLC v. Belcher, No. 18-90011, 2018 WL 3198552, at *3 (11th Cir. June 29, 2018) (citations omitted). For example, some circuit courts have construed the requirement to “mean[] a plaintiff must demonstrate an ‘administratively feasible’ ...
In Roark v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018), the District Court of Minnesota found that calls to a reassigned phone number did not violate the TCPA because the caller's reliance on the prior owner's express consent was reasonable.
The plaintiff, Stewart Roark ("Plaintiff"), alleged Credit One Bank, N.A. ("Credit One") violated the Telephone Consumer Protection Act ("TCPA") by using an automatic dialer ("ATDS") to call his cell phone number and left a prerecorded voicemail on his phone without his consent. See generally id.
On October 3, 2018, the FCC issued a Public Notice to seek comment on what constitutes an "automatic telephone dialing system" (ATDS) under the Telephone Consumer Protection Act (TCPA)[1] in the wake of the Ninth Circuit's Marks v. Crunch San Diego, LLC, 14-56834, 2018 WL 4495553 (9th Cir. Sept. 20, 2018) decision last month. Under the TCPA, an ATDS is defined as equipment that has the capacity to "(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers."[2] The FCC noted that the Marks court expanded this ...
In Gonzalez v. Ocwen Loan Servicing, LLC, No. 5:18-cv-340-Oc-30PRL, 2018 WL 4217065 (M.D. Fla. Sept. 5, 2018), the Middle District of Florida determined that the D.C. Circuit's opinion in ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter "ACA"], vacated the Federal Communications Commission's ("FCC") 2003, 2008, and 2015 Orders interpreting the definition of an automatic telephone dialing system ("ATDS").
The plaintiff, Wilfredo Gonzalez ("Plaintiff"), alleged that Ocwen Loan Servicing, LLC ("Ocwen") used an ATDS to place approximately 500 calls to his ...
In Washington v. Six Continents Hotels, Inc., No. 2:16-CV-03719-ODW-JEM, 2018 WL 4092024 (C.D. Cal. Aug. 24, 2018), the Central District of California found that ACA International v. FCC, 885 F.3d 687 (D.C. Cir. 2018) [hereinafter ACA], set aside all prior FCC guidance regarding the definition of an autodialer.
The plaintiff, Eric Washington ("Plaintiff"), alleged that Six Continents Hotels, Inc. ("Six Continents") sent him numerous unsolicited text messages using an automatic telephone dialing system ("ATDS") in violation of the Telephone Consumer Protection Act ...
In Keyes v. Ocwen Loan Servicing, LLC, No. 17-cv-11492, 2018 WL 3914707 (E.D. Mich. Aug. 16, 2018), the Eastern District of Michigan determined that the system Ocwen Loan Servicing, LLC ("Ocwen") used to place calls, the Aspect Unified IP ("Aspect System"), was not an automatic telephone dialing system ("ATDS") within the meaning of the Telephone Consumer Protection Act ("TCPA").
Plaintiff Darcel Keyes ("Plaintiff") claimed Ocwen violated the TCPA by using its Aspect System to call her, despite her objections. See id. at *1. To support her claims, Plaintiff relied on an expert ...
In Harris v. Navient Solutions, LLC, No. 3:15-cv-564 (RNC), 2018 WL 3748155 (D. Conn. Aug. 7, 2018), the United States District Court for the District of Connecticut followed the Second Circuit's decision in Reyes v. Lincoln Auto. Fin. Servs., 861 F.3d 51, 56 (2d Cir. 2017), which held that the TCPA did not permit unilateral revocation of consent to calls that was part of a bargained-for exchange. See Reyes, 861 F.3d at 56.
The plaintiff, Jennifer Harris ("Plaintiff"), alleged Navient Solutions ("Navient") violated the TCPA by using an automatic telephone dialing system ("ATDS") to ...
The Northern District of Alabama recently followed the Second Circuit's holding in Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), and held that consent provided in a contract as part of a bargained-for exchange could not be unilaterally revoked under the TCPA. With this holding, the Northern District of Alabama becomes the first court in the Eleventh Circuit to follow Reyes.
In Few v. Receivables Performance Management, No. 1:17-CV-2038-KOB, 2018 WL 3772863 (N.D. Ala. Aug. 9, 2018), Plaintiff alleged that Defendant violated the TCPA by calling and ...
In the wake of the D.C. Circuit's ruling in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018), which struck down the FCC's interpretations of "automatic telephone dialing system" ("ATDS") under the TCPA as "unreasonably, and impermissibly, expansive," courts are reevaluating what it takes to qualify as an ATDS under the statute. In Maddox v. CBE Group, Inc., No. 1:17-cv-1909-SCJ (N.D. Ga. May 22, 2018), the Northern District of Georgia found the defendant's calling equipment required human intervention to place calls, and thus did not qualify ...
In Barton v. Credit One Financial d/b/a Credit One Bank, No. 16CV2652, 2018 WL 2012876, (N.D. Ohio April 30, 2018), the Northern District of Ohio followed the Second Circuit's decision in Reyes v. Lincoln Automotive Financial Services, 861 F.3d 51 (2d Cir. 2017), and held that a plaintiff who consented to receiving telephone calls as part of a credit card application could not unilaterally revoke that consent.
The plaintiff, Carlton Barton, Jr. ("Plaintiff"), filed a lawsuit claiming that Credit One Financial d/b/a Credit One Bank ("Credit One") violated the Telephone Consumer ...
In Latner v. Mt. Sinai Health System, Inc., ___ F.3d ___, 2018 WL 265085 (2d Cir. 2018), the Second Circuit recently held that a single flu shot reminder text does not violate the TCPA when a patient gives prior express consent to be contacted.
David Latner ("Latner") filed a putative class action against Mt. Sinai Health System, Inc. ("Mt. Sinai") and West Park Medical Group, P.C. ("WPMG") alleging that defendants violated § 227(b)(1)(A)(iii) of the TCPA by sending him a single flu shot reminder text. Defendants moved for judgment on the pleadings, and the district court granted their ...
In the wake of Spokeo, Inc. v. Robins, 136 S.Ct. 1540 (May 16, 2016), the Supreme Court decision that had the chance to be legendary, but instead settled for punting back to the Ninth Circuit Court of Appeals, we are left wondering who the real winner was and what is the fallout for mere procedural violations of statutes for consumer claims?
Spokeo, Inc. v. Robins: Straight Back to the Ninth Circuit
In a 6-2 decision, with Justice Thomas concurring and Justices Ginsburg and Sotomayor dissenting, the Supreme Court held that that the Ninth Circuit Court of Appeals had failed to properly ...
In the wake of the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), a growing trend is emerging with respect to cases involving claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). Indeed, while many early decisions held that "a violation of the TCPA is a concrete injury," see, e.g., Rogers v. Capital One Bank (USA), N.A., No. 1:15-cv-4016, 2016 WL 3162592, at *2 (N.D. Ga. June 7, 2016), more recently, some courts are requiring more. In fact, in Ewing v. SQM US, Inc. et al., Judge Cathy Ann Bencivengo of the Southern District of ...
Following the Supreme Court's ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. May 16, 2016), it is clear that "Article III standing requires a concrete injury even in the context of a statutory violation," such that a plaintiff cannot "allege a bare procedural violation, divorced from any concrete harm, and satisfy the injury-in-fact requirement of Article III." Id. at 1549. Yet, the Court did not go so far as to rule that "the risk of real harm cannot satisfy the requirement of concreteness," and instead recognized that "the violation of a procedural right granted by statute can ...
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 ...
The writing was on the wall following Justice Elena Kagan's dissent in Genesis Healthcare Corp. v. v. Symczyk, 133 S. Ct. 1523 (2013), wherein Justice Kagan blasted the view that an unaccepted offer of complete relief made to a named plaintiff pursuant to Fed. R. Civ. P. 68 is capable of mooting the plaintiff's individual (and putative class) claims as "wrong, wrong, and wrong again," id. at 1533 (Kagan, J., dissenting) - a position that every Court of Appeals to rule on the issue after Genesis Healthcare had adopted - and on January 20, 2016, the Supreme Court made it official. In a 6-3 ...
Be careful what you wish for. That was the message Middle District of Florida Judge Carlos Mendoza delivered in Claudet v. First Federal Credit Control, Inc., 14-CV-2068 (M.D. Fla. Nov. 17, 2015) to the filer of an improper motion for sanctions under Rule 11 of the Federal Rules of Civil Procedure. The Court awarded attorney's fees AGAINST the filer of the improper Rule 11 motion, finding it was filed for an improper purpose (to harass opposing counsel) and certainly not the outcome the filer had in mind. More interestingly, the Court did so without any motion from the non-movant.
The ...In Gensel v. Performant Technologies, Inc., No. 13-C-1196, 2015 WL 6158072, (E.D. Wisc. Oct. 20, 2015), the U.S. District Court for the Eastern District of Wisconsin granted Performant Technologies, Inc.'s ("Performant") motion to continue the stay pending judicial review of the FCC's July 10 Order. Plaintiff filed suit against Performant alleging violations of the TCPA based on several calls she received from Performant on her cell phone. Plaintiff's cell phone provider assigned her a number that was previously assigned a person who defaulted on a student loan. Performant ...
On October 14, 2015, the United States Supreme Court heard oral argument in Campbell-Ewald Company v. Gomez, 14-SC-857. The plaintiff in Gomez alleged he received an unsolicited marketing text message advertising the US Navy from the marketing firm Campbell-Ewald Company in violation of the Telephone Consumer Protection Act ("TCPA"). The plaintiff sued on the Campbell-Ewald Company on behalf of himself and a putative class. The facts of the case present a classic example of an effort to "pick off" a putative class representative with an offer of judgment under Rule 68 ...
In Danehy v. Time Warner Cable Enterprise LLC, No. 5:14-cv-133, 2015 WL 5534285 (E.D.N.C. Sep. 18, 2015), the United States District Court for the Eastern District of North Carolina adopted the magistrate's findings that a caller's good-faith belief of consent is a complete defense under the Telephone Consumer Protection Act ("TCPA"). The defendant in Danehy, a cable company, had been asked by one of its customers to perform a service visit. The customer had provided a cell phone number to the defendant as one of his contact numbers. Unbeknownst to the defendant, the cell phone ...
The U.S. Court of Appeals for the Sixth Circuit recently addressed both the timing and scope of "prior express consent" under the Telephone Consumer Protection Act ("TCPA"). The plaintiff in Stephen M. Hill v. Homeward Residential, Inc., - F.3d- , No. 14-4168 (6th Cir. Aug. 21, 2015) alleged that his mortgage lender violated the TCPA by calling his cell phone using an autodialer in an attempt to contact him related to a mortgage debt he owed. The plaintiff did not provide his cell phone number when the mortgage was originated, but provided it three years later by contacting the mortgage ...
It would be difficult to identify a federal circuit court of appeals that has released a larger number of influential consumer finance decisions in the last year than the Eleventh Circuit. And last week, the court continued its recent consumer finance trend. Before Friday's landmark FDCPA decision in Davidson v. Capital One (covered in a separate blog post), the court again waded into the turbulent waters of the TCPA. On Thursday, the Eleventh Circuit issued its decision in Murphy v. DCI Biologicals Orlando, LLC, --- F.3d ---, No. 14-10414 (11th Cir. Aug. 20, 2015), in which another ...
For several years, numerous businesses and industry groups have petitioned the Federal Communications Commission ("FCC") to provide clarity to the Commission's prior interpretations of the Telephone Consumer Protection Act ("TCPA"). Currently, the FCC is facing more than twenty (20) petitions asking the Commission to provide guidance and relief on many different topics, including the definition of an "autodialer," whether a consumer can revoke "prior express consent," and whether a business can be held liable for unknowingly placing calls to a cell phone that had ...
John Chiles and Zach Miller were recently published in the American Bar Association's The Business Lawyer (Vol. 70, No. 2) with an article titled TCPA Litigation Developments: Inconsistent Federal Court Decisions Headline a Hectic Year. The article highlights important decisions issued by U.S. federal courts addressing the Telephone Consumer Protection Act ("TCPA") during 2014. Of particular importance is the Eleventh Circuit's opinion on revocation of consent and the meaning of "called party" in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir. 2014). Other topics ...
Three weeks ago, the U.S. Supreme Court raised eyebrows when it granted certiorari in Spokeo, Inc. v. Robins, --- S.Ct. ---, 2015 WL 1879778 (Apr. 27, 2015), where it appears the Court will decide whether a consumer has "standing" to assert a cause of action for statutory damages without having suffered actual damage. The decision to grant certiorari in Spokeo was surprising given that the Court ducked the chance to address the same issue several years ago, as discussed in our recent blog post "Will the U.S. Supreme Court Use Robins v. Spokeo to Finally Address "Standing" in the ...
Since the Constitution was ratified, 226 years ago, potential plaintiffs have been required to first establish that they have a "case or controversy" before a court can consider the merits of any legal claim. As the U.S. Supreme Court has phrased it, "the person seeking to invoke the jurisdiction of the court must establish the requisite standing to sue." Whitmore v. Arkansas, 495 U.S. 149, 154 (1990). There are three components of standing:
1) the plaintiff has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or ...
In May 2013, a ruling from the U.S. District Court for the Southern District of Florida caused great concern among creditors and debt collectors by taking an unprecedented stance against the supremacy of orders issued by the Federal Communications Commission ("FCC") regarding the Telephone Consumer Protect Act ("TCPA"). In Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013), Judge Robert N. Scola, Jr. granted partial summary judgment on the plaintiff's TCPA claims against the defendant, Gulf Coast, which had obtained the plaintiff's cell phone ...
In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...
In Osorio v. State Farm Bank, F.S.B., No. 13-10951 (11th Cir. Mar. 28, 2014), the United States Court of Appeals for the Eleventh Circuit reversed and remanded a Florida district court's grant of defendant's motion for summary judgment on plaintiff's Telephone Consumer Protection Act ("TCPA") claim. Specifically, Plaintiff Fredy Osorio brought suit against State Farm Bank under 47 U.S.C. § 227, which "provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls." Id. The Eleventh ...
In Cherkaoui v. Santander Consumer USA, Inc., No. 4:13-cv-00467 (S.D. Tex. May 23, 2014), the U.S. District Court for the Southern District of Texas examined how a creditor may obtain "prior express consent" from a borrower and the level of evidence necessary for a borrower to survive summary judgment with claims of oral revocation of consent. The plaintiff in Cherkaoui obtained an automobile loan from the defendant, Santander Consumer USA, Inc. ("Santander"). On his credit application, the plaintiff provided his cellular telephone number. The plaintiff alleged that, despite ...
In Murphy v. DCI Biologicals Orlando, LLC, No. 6:12-CV-1459-ORL, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013), a class action brought under the Telephone Consumer Protection Act ("TCPA"), the Middle District of Florida held that the plaintiff failed to state a claim because he had admittedly provided his cell phone number to the defendants, an act constituting "express consent" to be autodialed. The plaintiff in Murphy alleged that he had provided his cell phone number to the defendants, three affiliated companies involved in the collection and distribution of blood plasma, in ...
In Hunt v. 21st Mortgage Corp., No. 2:12-CV-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013), the Northern District of Alabama rendered an important decision regarding what constitutes an "automatic telephone dialing system" ("ATDS") under the Telephone Consumer Protection Act ("TCPA") in the digital age, holding that a system constitutes an ATDS only if it has the present capacity, at the time the calls were being made, to randomly dial phone numbers. The plaintiff, who had brought claims under the TCPA, sought to compel inspection of the defendant's telephone system. The ...
In Forrest v. Genpact Servs., LLC, 3:12-CV-2249, 2013 WL 4516479 (M.D. Pa. Aug. 26, 2013), the United States District Court for the Middle District of Pennsylvania held that a plaintiff bringing a Telephone Consumer Protection Act ("TCPA") claim under 47 U.S.C. § 227(b)(1)(A) is not required to allege that she actually answered the phone calls placed to her cellular telephone. Defendant Genpact Services, LLC, admitted to calling Plaintiff's cellular telephone over 225 times in a 54-day period using an automatic telephone dialing system. Plaintiff brought a TCPA claim against ...
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 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 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 ...
Judge Phyllis J. Hamilton of the Northern District of California, in Roberts v. Paypal, Inc., 2013 WL 2384242 (N.D. Cal. May 30, 2013), has added to the growing list of cases which hold that when a consumer supplies their cellular telephone number to a business, that consumer has supplied the necessary prior express consent to receive certain calls otherwise prohibited by the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. 227(b)(1). In the absence of prior express consent, or other extenuating circumstances, the TCPA prohibits, among other things, telephone calls to a ...
In Mais v. Gulf Coast Collection Bureau, Inc., the United States District Court for the Southern District of Florida addressed the question of whether providing one's cell phone number during a hospital admission amounts to prior express consent under the TCPA to receive collection calls arising out of the hospital visit. __ F. Supp. 2d __, 2013 WL 1899616, at 11 (S.D. Fla. May 8, 2013). Under the particular facts of Mais, the court answered the question in the negative. During a hospital visit, the plaintiff's wife had provided the plaintiff's cell phone number to the hospital's ...
In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 1283881, 11-cv-61357 (S.D. Fla. March 26, 2013), Judge Robert N. Scola of the District Court for the Southern District of Florida certified a Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227(b)(1)(A)(iii), and Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § § 1692e(11) and 1692d(6), class action over the objection of the Defendant. The Defendant objected to the Plaintiff's standing on both Article III constitutional grounds and based upon the alleged lack of statutory standing under the TCPA. The ...
A federal court in Illinois recently denied a motion for class certification of a TCPA claim due to the predominance of individualized issues of proving whether the putative class members had consented to the defendant's phone calls. The case illustrates the point that defining a class to include only those debtors who had not provided their phone numbers to the original creditor in a transaction does not always eliminate the individualized nature of the issue of consent. In the case, Jamison v. First Credit Services, Inc., 2013 WL 1248306 (N.D. Ill. Mar. 28, 2013), the named plaintiff ...
Claims under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, et seq., which prohibits, among other things, companies from calling an individual's cell phone without prior consent, often involve discovery requests for call logs and call reports. Recently, a California federal court held that a defendant may be required to produce this information even in the pre-certification stages of a class action suit. In a recent case, Knutson v. Schwan's Home Service, Inc., No. 12-cv-964-GPC, 2013 WL 1222116 (S.D. Cal. Mar. 25, 2013), the parties filed a document entitled ...
In Florence Mussat, M.D., S.C. v. Global Healthcare Resource, LLC, 2013 WL 1087551 (N.D. Ill. March 13, 2013), the North District Court of Illinois for the Eastern Division granted a Motion for Class Certification for claims relating to alleged Telephone Consumer Protection Act ("TCPA") violations and state law claims. In February of 2011, Defendant, Global Healthcare Resource, LLC ("GHR") sent a fax to Plaintiff, Florence Mussat, M.D., S.C. ("Mussat"), on behalf of Physician Billing Services ("PBS"), stating that PBS is a subsidiary of GHR that provides medical ...
A New Jersey federal district court recently denied a motion to reconsider its previous holding that state law limitations on class actions do not apply to TCPA claims filed in federal court. At issue in the case, Landsman & Funk, P.C. v. Skinder-Strauss Associates, No. 08-3610, 2013 WL 466448 (D.N.J. Feb. 8, 2013), was a New York procedural law, C.P.L.R. § 901(b), which prohibits statutory class actions unless the statute creating liability explicitly provides for recovery in the form of class actions. The court had previously determined that the statute would apply under a choice of ...
The United States District Court for the Southern District of California gave its preliminary approval to a $17.1 million settlement fund in a class action brought under the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § § 227 et seq. in Malta v. Federal Home Loan Mortgage Corporation, et al., No. 10-CV-1290 BEN (NLS), 2013 WL 444619 (S.D. Cal. Feb. 5, 2013). In Malta, the plaintiffs alleged that one of the defendants, a loan servicer, violated the TCPA by calling the cellular phones of account-holders "without 'prior express consent,' using an 'automatic telephone dialing ...