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 ...
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 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 ...