Telephone Consumer Protection Act Blog | Burr & Forman LLP

New Jersey District Court Rejects Argument That State Law Prohibits Class Certification In Federal Court

Joshua H. Threadcraft — Wed, 26 Dec 2012 09:00:01 -0500

Goodrich Management Corp. v. AFGO Mechanical Services, Inc., Civ. Nos. 09-43 (WJM), 11-2769 (WJM) (D.N.J. Dec. 14, 2012) Pending before the court were motions to deny class certification in two separate cases. Defendants argued that: (1) Federal courts must enforce state law restrictions on bringing TCPA claims; (2) Under New Jersey law, private TCPA class actions are prohibited; and (3) Because New Jersey law applies to Plaintiffs' class claims, denial of class certification was appropriate as a matter of law. Plaintiffs opposed the motions, arguing that Federal Rule of Civil ...

Nevada Supreme Court Holds Prior Express Consent To Call Land Line Applies When Number Ported To Cell Phone

Joshua H. Threadcraft — Tue, 18 Dec 2012 09:00:02 -0500

Edwards v. National Credit Adjusters, LLC, Nos.59081, 59406, 2012 WL 5851288 (Nev. Nov. 16, 2012) The issue before the court was whether Plaintiff's prior express consent to call his land line equated consent to call that number when ported to his cell phone. Noting that Plaintiff never advised the creditor of the transfer, the Nevada Supreme Court affirmed summary judgment in Defendant's favor stating "Appellant admits that he gave consent to be contacted at the telephone number at issue, and “'[a]although the TCPA generally prohibits autodialed calls to wireless phones, it also ...

MDL Panel Consolidates TCPA Claims In Northern District of Illinois

Joshua H. Threadcraft — Tue, 11 Dec 2012 09:00:03 -0500

In re Capital One Telephone Consumer Protection Act Litigation, No. MDL 2416 (N.D. Ill. Dec. 10, 2012) Over opposition from all responding Plaintiffs, the Judicial Panel on Multidistrict Litigation (JPML) ordered centralization in the Northern District of Illinois of more than 30 actions asserting TCPA claims against Defendant, including adversary proceedings. The JPML's conclusion was based on the fact that the subject actions shared factual issues regarding Defendant's policies and procedures for calling, or directing its agents to call, consumers, as well as Defendant's ...

FCC Holds Confirmatory Text Messages Do Not Violate TCPA

Joshua H. Threadcraft — Mon, 03 Dec 2012 09:00:04 -0500

In re Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991; SoundBite Communications, Inc. Petition for Expedited Declaratory Ruling, CG Docket No. 02-278 (Nov. 29, 2012) Pending before the Federal Communications Commission was a Petition to determine whether sending a single text using an Automatic Telephone Dialing System (ATDS) confirming receipt of a request that no further text messages be sent violated the TCPA. The FCC concluded that a text message falls within a recipient's prior express consent to receive text messages and does not ...

Illinois District Court Certifies Interlocutory Summary Judgment Order Addressing Meaning of Prior Express Consent and Debtor-Creditor Rule

Joshua H. Threadcraft — Thu, 29 Nov 2012 09:00:05 -0500

Thrasher-Lyon v. CCS Commercial LLC, No. 11 C 04473, 2012 WL 5389722 (N.D. Ill. Nov. 2, 2012) Pending before the court was Defendants' Motion to Reconsider summary judgment granted in the named Plaintiff's favor, and alternative request for certification of the summary judgment decision for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Rejecting Defendant's Motion to Reconsider, the court did, however, certify its order for interlocutory appeal. Specifically, the court concluded that its summary judgment decision decided two controlling issues of law: (1) the ...

Eastern District of Illinois Finds Genuine Issue of Material Fact As To Whether Defendant Used Auto Dialer To Call Plaintiff's Cell Phone

Joshua H. Threadcraft — Wed, 21 Nov 2012 09:00:06 -0500

Ploch v. FirstSource Advantage, LLC, No. 4:12-cv-310-JAR, 2012 WL 538476 (E.D. Mo. Nov. 1, 2012) Defendant moved for summary judgment on Plaintiff's claim for violation of the TCPA, contending that Plaintiff could not adduce any evidence that it used an Automatic Telephone Dialing System (ATDS) to call Plaintiff's cell phone, and did not leave any prerecorded message on Plaintiff's cell phone. Defendant submitted a declaration from its Dialer Operations Manager stating that Defendant did not place any calls to Plaintiff's cell phone using an ATDS, and all calls were made through ...

Alabama District Court Grants Pharmacy's Motion to Dismiss, Holding Plaintiff's Claim Barred Because She Provided Her Cell Phone Number Upon Request

Joshua H. Threadcraft — Tue, 20 Nov 2012 09:00:07 -0500

Pinkard v. Wal-Mart Stores, Inc., No. 3:12-cv-02902-CLS, 2012 WL (N.D. Ala. Nov. 9, 2012) After dropping off a prescription with Defendant, Plaintiff was asked for several pieces of information, including her cell phone number. According to Defendant, the number was needed "in case there were any questions that came up." Defendant did not explicitly seek permission to send Plaintiff text messages, nonetheless, it sent an undisclosed number within hours of Plaintiff leaving her prescription with Defendant. When Plaintiff asked Defendant why she was receiving the text messages ...

Southern District of California Holds Confirmatory Text Does Not Violate TCPA

Joshua H. Threadcraft — Fri, 16 Nov 2012 09:00:08 -0500

Ryabyshchuck v. Citibank (South Dakota), N.A., No. 11-cv-1236-IEG (WVG), 2012 WL 5379143 (S.D. Cal. Oct. 30, 2012) Pending before the court were cross-motions for summary judgment on the dispositive issue of whether confirmatory text messages sent to a cell phone number voluntarily submitted via an on-line credit application violated the TCPA. Specifically, after providing his cell phone number to Defendant, Plaintiff received a text message from a third-party vendor acting on behalf of Defendant. Plaintiff replied to the text with the word “stop,” to which Defendant sent a ...

Georgia Supreme Court Holds Faxes Need Simply Be Sent, Not Received In Order To State TCPA Claim in $459 Million TCPA Case

Joshua H. Threadcraft — Thu, 15 Nov 2012 09:00:09 -0500

A Fast Sign Company, Inc. d/b/a Fastsigns v. American Home Services, Inc., No. S11G1708, 2012 WL 5381254 (Ga. Nov. 5, 2012) In 2002 and 2003, Defendant, a siding, window and gutter installation company, contracted with a third party to send a total of 318 unsolicited advertisements to various fax machines in the Atlanta, Georgia area. A class action complaint was filed, after which time a bench trial was held and a $459 Million verdict was entered. The Georgia Court of Appeals vacated the verdict, concluding that the trial court erroneously based liability and damages on the number of ...

Missouri Court of Appeals Reverses and Renders Summary Judgment, Holding Insurer Not Liable For Indemnity Because TCPA Statutory Damages Are A Penalty

Joshua H. Threadcraft — Fri, 09 Nov 2012 09:00:10 -0500

Columbia Casualty Co. v. Hiar Holdings, L.L.C., No. ED 98253 (MO. App. E.D. Oct. 23, 2012) Plaintiff insurance company appealed the trial court's summary judgment order in favor of Defendants who had settled an underlying action involving the allegedly unsolicited transmission of more than 10,000 faxes in violation of the TCPA for $5 Million. Specifically at issue in the declaratory judgment action was whether Plaintiff's insurance policy provided coverage for the settlement. Reversing and rendering judgment in favor of Plaintiff, the court noted its previous opinion ...