Bank v. Sparks Energy Holdings, LLC, Civ. No. 4:11-cv-4082, 2012 WL 4097749 (S.D. Tex. Sept. 13, 2012) Plaintiff, a citizen of the State of New York, filed a purported class action lawsuit in Texas against Defendant. At issue was an allegedly unsolicited voice message Plaintiff received on his residential phone line stating: "Hello, this is [omission in the original] pertaining to your current electric bill with Con Edison, reference number 42648967. We are now able to offer you a lower rate on your electricity bill through the recent government deregulation. Press five to be ...
Owners Ins. Co. v. European Auto Works, Inc., No. 11-3068, 2012 WL 4052406 (8th Cir. Sept. 17, 2012). At issue in the declaratory judgment action filed by Owners Insurance Company against European Auto Works, Inc. was whether Plaintiff's insurance policy provided coverage for a $1,951,500 settlement of a class action lawsuit, which was only enforceable against the insurer, not the insured, if coverage was found to exist. Recognizing that the primary issue presented was whether the advertising injury provision for “oral or written publication of material that violates a person's ...
FDS Restaurants, Inc. v. All Plumbing, Inc., Civ. No. 12-394 (RMC), 2012 WL 4052847 (D.D.C. Sept. 14, 2012). In FDS Restaurants, Inc. v. All Plumbing, Inc., Defendants sought to remove a TCPA case to federal court, arguing that the United States Supreme Court's holding in Mims v. Arrow Fin. Servs. LLC, 132 S.Ct. 740 (2012) recognizing that the TCPA creates federal question jurisdiction was a triggering event allowing removal. While cases not originally removable can be removed within 30 days after receipt through service or otherwise of an amended pleading motion, order, or other ...
Mey v. Pinnacle Security, LLC, No. 5:11-cv-47, 2012 WL 4009718 (N.D. W.Va. Sept. 12, 2012) Plaintiff filed a purported class action lawsuit relating to a call from an unidentified party, advertising Defendant's goods and services received on a cell phone she owned but was being used by her son. Defendant moved for summary judgment, arguing that it did not make the call, and, as such, was not liable for the alleged TCPA violation. Concluding that the TCPA authorizes two private causes set forth in: (1) 47 U.S.C. § 227(c)(5); and (2) 47 U.S.C. § 227(b)(3), the court held that Plaintiff could ...
While lawsuits against accounts receivable management firms are down 5 percent compared to the same point in 2011, lawsuit asserting claims for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 are up almost 47 percent according to an article published by insideARM.com
A proposed settlement has been reached in a class action filed against Jiffy Lube relating to 2.3 million marketing text messages allegedly sent on April 21, 2010. Pursuant to the terms of the settlement class members will be provided with certificates for goods/services valued up to $46,844,780.00, with a cash redemption value up to $35,133,585.00. The settlement also proposes that class counsel receive up to 366,300 certificates (with a cash equivalent of $4,750,000, representing approximately 13.51 percent of the cash value made available to the class).
In a class action lawsuit brought on behalf of those purportedly receiving text messages regarding the XBOX gaming system, Defendant argued that the absence of allegations that Plaintiff was himself charged by his wireless carrier for the text message he received, combined with the Complaint's reliance on general allegations of a “growing problem” of “wireless spam” and other non-particularized forms of harm, were insufficient to establish a cognizable injury to Smith. Plaintiff countered, contending that he experienced–and alleged–numerous sufficiently ...
While the TCPA does not define the phrase “prior express consent,” the FCC (vested with authority to promulgate rules to implement the TCPA) has defined it as consent provided by the consumer during the transaction resulting in the debt. According to the FCC, a specific example of such consent occurs when a consumer lists his or her cell phone number on a credit application seeking the number. Though the FCC concludes that a request for a debtor's cell phone number in a credit application need not disclose the purpose for which the number is sought, it has suggested that credit ...
The phrases “artificial” and “pre-recorded voices” are self-explanatory — for example, an artificial voice is a computer generated voice, and a pre-recorded voice is simply a pre-recorded message that an individual would hear when answering a call. The TCPA defines Automatic Telephone Dialing Systems (ATDS) as equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator to dial numbers. ATDS have also been described as including: (1) predictive dialers, i.e., equipment that eliminates the need for time ...
Though the TCPA is a federal statute, until recently, a split of authority existed as to whether federal district courts could exercise original federal question jurisdiction over TCPA claims. This was due to the fact that the Act contains distinct provisions governing civil actions brought by private parties, and state attorneys general. On the one hand, the TCPA allows private parties to bring TCPA claims in an appropriate court of a state if otherwise permitted by the laws or rules of that state. States attorney generals on the other hand are limited to bringing TCPA claims in ...