Telephone Consumer Protection Act

Bank v. ICOT Holdings, LLC, 18-cv-02554 (AMD) (PK), 2024 WL 278460 (E.D.N.Y. Jan. 25, 2024)

Pro se Plaintiff, an attorney, filed a class action lawsuit alleging that two calls he answered at his mother’s house advertising hearing aids, violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) because his mother’s phone number was on the National Do-Not-Call-Registry and nobody had given Defendant express written consent to call the number. Plaintiff filed a motion for summary judgment, placing at issue what constitutes a “called party.” The Court stated that to ...

Trim v Reward Zone USA LLC, No. 22-55517, 2023 WL 5025264 (9th Cir. August 8, 2023)

Plaintiff filed a putative class action, contending, in part, that three marketing text messages she received utilized prerecorded voices, therefore, the United States Supreme Court’s Decision in Facebook, Inc. v. Duguid, 141 S.Ct. 1163 (2021), regarding what constitutes an Automatic Telephone Dialing System, did not prohibit her from proceeding with her case. In advancing this argument, Plaintiff claimed that because the definition of “voice” in Meriam Webster’s dictionary is “an ...

Perrong v. Montgomery County Democratic Committee, et al., No. 22-cv-4475 (E.D. Pa. July 18, 2023)

Plaintiff sued Defendants, claiming that they violated the Telephone Consumer Protection Act’s prohibition of making certain calls using an automatic telephone dialing system (“ATDS”). The only disputed issue was “how the definition of an ATDS applies to a device that does not generate phone numbers from scratch but instead uses a stored list of numbers and ‘randomly’ or ‘sequentially’ dials all the numbers on that list.”

Concluding Defendant did not violate ...

Brennan Landy v. Vision Solar, LLC d/b/a Solar Exchange, No. 21-20241 2023 WL 4578993 (D.N.J. July 18, 2023)

In this case, Plaintiff filed a putative class action alleging Defendant violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(c), by placing more than one unsolicited telemarketing call during a 12-month period without consent to consumers who registered their telephone numbers on the National Do Not Call Registry. The Original Complaint identified Defendant as “Vision Solar, LLC d/b/a Solar Exchange.” Defendant filed a motion to dismiss, arguing that no ...

In July, 2021, the Florida Telephone Solicitation Act, F.S.A. § 501.059 (“FTSA”), was amended to create a private right of action for those receiving marketing calls and text messages, giving rise to an onslaught of individual and class action litigation in state and federal courts across the country. On May 25, 2023, Florida Governor Ron DeSantis signed legislation amending the FTSA, significantly impacting future claims brought under the Act, as well as pending, uncertified putative class actions. In pertinent part, the amendment provides:

1. Automated System: An ...

Drazen v. GoDaddy.com, LLC, No. 21-10199 (11th Cir. July 27, 2022)

Plaintiffs’ Claims and Allegations

Plaintiff’s claims, and those advanced in two separately filed class action lawsuits alleging violation of the TCPA by making unsolicited promotional/marketing communications, were consolidated after which time the Parties entered into settlement negotiations. Thereafter, Plaintiffs submitted a proposed class settlement agreement defining the class as: All persons within the United States who received a call or text message to his or her cellular telephone from ...

Facebook, Inc. v. Duguid, et. al., No. 19-511, 2021 WL 1215717 (S.Ct. April 1, 2021)

On April 1, 2021, the United States Supreme Court released its much anticipated decision addressing the definition the phrase “Automatic Telephone Dialing System” (“ATDS”) used in the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”). At issue in the underlying case was whether technology used to send a text message constituted an ATDS. Writing for the Court, Justice Sotomayor, joined by Justices, Roberts, Thomas, Breyer, Kagan, Gorsuch, Kavanaugh and Barrett, wasted no ...

Elzen v. Global Strategy Group, LLC, et al., No. 20-cv-3541 (JPO), 2021 WL 185328 (S.D.N.Y. Jan. 19, 2021)

Plaintiff filed a putative class action, claiming Defendants violated the Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA), by sending Plaintiff and others an unsolicited text message survey. The message Plaintiff received stated “DAVID, We’re texting voters about local issues and your opinion matters. Please click to participate:,” providing a link directing Plaintiff to a survey. One Defendant moved to stay the case, contending that resolution of ...

Lidenbaum v. Realgy, LLC, 2020 WL 6361915 (N.D. Ohio Oct. 29, 2020)

Pending before the Court was a class action lawsuit, contending Defendants violated the Telephone Consumer Protection Act, 47 § U.S.C. 227 (“TCPA”). Defendants filed a Motion to Dismiss under Fed.R.Civ.P. 12(b)(1), contending that the Court lacked subject matter jurisdiction over Plaintiffs’ claims because they arose during a time that the TCPA included a “government-debt” exception, which exempted calls made to collect a debt owed or guaranteed by the United States held to be unconstitutional in ...

Barr v. American Association of Political Consultants, Inc., No. 19-631, 2020 WL 3633780 (U.S. July 6, 2020)

*             Procedural History of the Case

Plaintiffs; political and nonprofit organizations seeking to make political robocalls to cell phones discussing candidates and issues, soliciting donations and conducting polls; filed a declaratory action against U.S. Attorney General William Barr and the Federal Communications Commission (“the government”), asserting that the 2015 exception to application of the Telephone Consumer Protection Act (“TCPA”) to calls ...

Elizabeth Panzarella v. Navient Solutions, LLC, No. 18-3735, 2020 WL 3250508 (E.D. Pa. June 16, 2020)

Two Plaintiffs filed suit relating to calls Defendant made when a relative’s loan became delinquent. Defendant moved for summary judgment on Plaintiffs’ Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”) claims, arguing that the calls were not made using an Automatic Telephone Dialing System (“ATDS”). The TCPA prohibits, in part, calls to a person’s cell phone using an ATDS without their prior express consent. The TCPA defines an ATDS as “equipment that ...

Whittaker v All Reverse Mortgage Inc.. No. CV 20-08016-PCT-DLR, 2020 WL 28229785 (D. Ariz. May 29, 2020)

Plaintiff filed a putative class action, alleging violations of the Telephone Consumer Protection Act, 47 U.S.C. § 227, (TCPA) by placing calls and sending text messages using an Automatic Telephone Dialing System (ATDS). Defendant moved to stay the case pending a ruling by the United States Supreme Court in the case of Barr v AAPC, 140 S.Ct. 812 (Jan. 10, 2020). Plaintiff opposed the Motion, arguing that the decision in AAPC was irrelevant to the merits of the instance case and that ...

Vanessa Wright v. USAA Savings Bank, No. 2:19-cv-00591 WBS CKD, 2020 WL 2615441 (E.D. Cal. May 22, 2020)

Plaintiff, who had a credit card account with Defendant for approximately 18 years, retained counsel to address financial issues facing his household. Counsel prepared a letter of representation and revocation of consent to call Plaintiff, which he sent to Defendant’s headquarters via certified mail. The confirmation notice associated with the letter verified that it was “delivered to the front desk, reception area, or mail room . . . In LAS VEGAS, NV 89169.” Defendant ...

Medley v. Dish Network, LLC, No. 8:16-cv-02534-CEH-CPT (11th Cir. May 1, 2020).

Plaintiff entered into a contract, providing her cell phone number and expressly authorizing Defendant “to contact [her] regarding [her] DISH Network account or to recover any unpaid portion of [her] obligation to DISH, through an automated or predictive dialing system or prerecorded messaging system.” Plaintiff’s counsel sent Defendant three faxes noting the Telephone Consumer Protection Act’s (TCPA) prohibition again making any call to their client using an automatic telephone ...

Lazar Shcherb v. Angi Homeservices, Inc., 19-cv-367 (S.D.N.Y. Oct. 25, 2019)

Plaintiff filed suit against various corporate defendants alleging that they used an automatic telephone dialing system (ATDS) to call his cell phone in violation of the Telephone Consumer Protection Act (TCPA) contending that, “[u]pon information and belief,” “when Defendants made these calls, [they] used equipment that had the capacity to store or produce telephone numbers . . . using a random or sequential number generator and/or a predictive dialer” with the capacity to dial such ...

Ford v. Bluestem Brands, Inc., No. 18 CV 2695 (VB), 2019 WL 1046367 (S.D.N.Y. March 4, 2019)

Defendant provided Plaintiff with a $300 line of credit Plaintiff used to purchase a laptop from Defendant. Plaintiff claimed he received a letter from Defendant canceling his order, never received the laptop and Defendant could not prove he did. When Defendant sought to collect payment for the laptop, Plaintiff allegedly told Defendant he never received it, disputed the payment and required all future communications be by mail. Plaintiff claimed that despite this notification, he received ...

Reassigned NumbersSteward v. Credit One Bank, N.A., No. 16-173 (PAM/ECW), 2018 WL 5921652 (D. Minn. Nov. 13, 2018)

By: Joshua H. Threadcraft

Plaintiff filed suit alleging Defendant violated the TCPA by calling his recently assigned cell phone number 140 times to collect debt from another, including leaving 4 prerecorded messages. Defendant moved for summary judgment arguing that: (1) Its phone system was not an Automatic Telephone Dialing System (ATDS); and (2) It was reasonable to rely on consent from the previous subscriber when calling Plaintiff.

With respect to the first ...

Gaza v. Auto Glass America, LLC, No. 8:17-cv-1811-T-27AEP, 2018 WL 5775915 (M.D. Fla. Nov. 2, 2018)

Plaintiff alleged that he received five text messages, asserting claims for violation of the TCPA. Defendant moved for summary judgment, contending Plaintiff failed to produce evidence establishing that an ATDS was used to send the text messages. The Court began its analysis, noting that to succeed on his claim, Plaintiff must establish Defendant sent the text messages using an ATDS and that "[t]he essential function of an ATDS is 'the capacity to dial numbers without human ...

Wilkes v. CareSource Management Group Co., No. 4:16-cv-38 JVB, 2018 WL 4680028 (N.D. Ind. Sept. 29, 2018)

Plaintiff husband and wife applied for health insurance coverage under the Affordable Care Act through the Health Insurance Marketplace at healthcare.gov ("Marketplace"). In their online application, Plaintiffs provided the wife's cellular telephone number, which the website disclosed could be shared with insurance companies providing insurance plans. When consumers select a plan and submit an application to Marketplace, their application and contact information ...

Medley v. Dish Network, LLC, Case No. 8:16-cv-3534-36TBM, 2018 WL 4092120 (M.D. Fla. Aug. 27, 2018)

Joining a host of courts across the county, the U.S. District Court for the Middle District of Florida recently ruled that contractual prior express consent to be called cannot be unilaterally revoked. The basis for the Court's holding was that Plaintiff entered into an Agreement with Defendant, incorporating a Customer Agreement providing that:

By signing below, you authorize [Defendant], and any debt collection agency or debt collection attorney hired by [Defendant], to contact ...

Harris v. Navient Solutions, LLC, No. 3:15-cv-546, 2018 WL 3748155 (D. Conn. Aug. 7, 2018)

Plaintiff signed promissory notes to secure student loans in which she provided her telephone number, agreed to update Defendant if her number changed and to the following clause:

"This Note may be modified only if you put the modification in writing and the modification is agreed to by any borrower or cosigner . . . I understand that you may use automated telephone dialing equipment or an artificial or prerecorded voice message to contact me in connection with this loan or loan application. You may ...

Few v. Receivables Performances Management, No. 1:17-cv-2038-KOB, 2018 WL 3772863 (N.D. Ala. Aug. 9, 2018)

The Telephone Consumer Protection Act, 47 U.S.C. §227 (TCPA), prohibits calls to cellular telephones using an Automatic Telephone Dialing System (ATDS), artificial or prerecorded voice. But calls made with prior express consent do not violate the Act. Plaintiff alleged Defendant violated the Act by calling her cell phone at least 184 times using an ATDS after she revoked prior express consent to be called. Defendant moved for summary judgment, arguing that Plaintiff could ...

St. Louis Heart Center, Inc. v. Nomax, Inc., No. 19-1794, 2018 WL 3719694 (8th Cir. Aug. 6, 2018)

Plaintiff filed a class action lawsuit in state court, alleging Defendant sent it 12 fax advertisements without including proper opt-out notice. Defendant removed the case to federal court, then sought dismissal for lack of Article III standing. Unsolicited faxes require an "opt-out" notice meeting certain requirements: (1) they must be "clear and conspicuous and on the first page of the advertisement;" (2) state that the recipient may request that the sender not send future ...

Pinkus v. Sirius XM Radio, Inc., No. 16 C 10858, 2018 WL 3586186 (N.D. Ill. July 26, 2018)

Plaintiff filed suit, alleging Defendant violated the TCPA by, among other things, placing more than 100 calls to his cell phone using an Automatic Telephone Dialing System (ATDS). After the D.C. Circuit's decision invalidating the 2015 FCC Declaratory Ruling in ACA International, Defendant sought dismissal of Plaintiff's claims, arguing that the technology used to place calls did not meet the plain language definition of an ATDS in the TCPA. Plaintiff disagreed, contending Defendant used a ...

Both the House and Senate have proposed legislation that could have profound implications on TCPA litigation. The companion legislation introduced by Democratic Congressman Frank Pallone, Jr. and Senator Ed Markey entitled "Stopping Bad Robocalls Act" seeks to, among other things:

• Defines a "Robocall": As a call or text using equipment that makes a series of calls to stored telephone numbers, including numbers stored on a list, or to telephone numbers produced using a random or sequential number generator, except for calls made using only equipment that the caller demonstrates ...

Herrick v. GoDaddy.com, LLC, No. CV 16-00254-PHX-DJH, 2018 WL 2229131 (D. Ariz. May 14, 2018)

Background

In 2015, Defendant contracted with a third-party web-based software application company called 3Seventy to send a one-text marketing campaign to nearly 100,000 customers. To conduct the campaign, Defendant had to provide 3Seventy with a list of customer phone numbers, which Defendant did via an FTP site. 3Seventy then uploaded the list of numbers to its Platform after which time, Defendant navigated the website, manually logged onto the Platform and determined the numbers to ...

On May 14, 2018, in the wake of the landmark decision ACA International v. FCC, 855 F.3d 687 (D.C. Cir. 2018), the Federal Communications Commission (FCC) issued a Public Notice seeking comment on a myriad of topics including:

• What constitutes an Automatic Telephone Dialing System (ATDS) in light of the Court of Appeals' finding that the agency's "'capacious understanding of the device's 'capacity' lies considerably beyond the agency's zone of delegated authority"
• What functions a devise must be able to perform to qualify as an ATDS. The Court of Appeals' noted the FCC has defined the ...

Viggiano v. Kohls Department Stores, Civ. Action No. 17-0243-BRM-TJB, (D.N.J. Nov. 27, 2017)

Plaintiff filed a class action TCPA lawsuit placing at issue automated text message allegedly sent by Defendant after Plaintiff claimed to have revoked consent to be contacted by text message. While Plaintiff admitted signing up to receive the messages, Plaintiff claimed to have later withdrawn consent through responses such as: (1) "I've changed my mind and don't want to receive these anymore,"; (2) "Please do not send any further messages."; and (3) "… I don't want these messages ...

Reyes v. Lincoln Automotive Financial Services, No. 16-2104-cv (2nd Cir. August 21, 2017)

Plaintiff leased a car from Defendant. A term of the lease stated:

You [Reyes] also expressly consent and agree that Lessor [Ford], Finance Company, Holder and their affiliates, agents and service providers may use written, electronic or verbal means to contact you. This consent includes, but is not limited to, contact by manual calling methods, prerecorded or artificial voice messages, text messages, emails and/or automatic telephone dialing systems. You agree that Lessor, Finance ...

The world of Telephone Consumer Protection Act (TCPA) litigation is constantly changing. With this evolution, new issues arise on almost a daily basis, challenging those prosecuting and defending these claims. A recent and increasingly litigated issue that both Plaintiff's and Defense counsel agree will likely serve as the next battleground of TCPA litigation is whether calls are made using an Automatic Telephone Dialing System, and particularly:

(1) What constitutes "capacity" as the term is used in the TCPA; and

(2) The level of human intervention necessary to remove a call ...

Anton Ewing v. SQM US, Inc., 3:16-cv-1609-CAB-JLB (S.D. Cal. Sept. 29, 2016)

Plaintiff filed suit, placing at issue a single call to his cell phone using an ATDS, and attempting to represent a class of similarly situated individuals. The only allegation in the Complaint arguably relating to injury was a claim that the cell phone Defendants called was "assigned to a cellular telephone service for which Plaintiff incurs a charge for incoming calls."

Noting this phrasing "mimics the language of the TCPA," and assuming for purposes of the Motion to Dismiss that Plaintiff alleged he ...

Smith v. Altima Medical Equipment, Inc., Case No. Ed CV 16-00339-AB (DTBx) (C.D. Cal. Jul. 29, 2016)

Plaintiff filed a TCPA class action lawsuit based on a single telephone call regarding the sale of medical equipment, claiming harm to herself and the class in the form of "multiple involuntary telephone and electrical charges, the aggravation, nuisance, and invasion of privacy that necessarily accompanies the receipt of unsolicited and harassing telephone calls, and violations of their statutory rights." Defendant moved to dismiss under Federal Rules of Civil Procedure Rules ...

Fulton Dental, LLC v. Bisco, Inc., No. 15-c-11038 (N.D. Ill. Sept. 2, 2016).

Plaintiff dental practice filed a class action lawsuit relating to a fax it received, contending that the fax violated the TCPA. Defendant made a settlement offer of $3,005 plus costs, which Plaintiff rejected. The next day, Defendant moved to deposit $3,600 with the Court under Rule 67, taking the position that $3,600 exceeded what Plaintiff could ever hope to recover because it assumed maximum liability: (1) $3,005 for two willful violations of the TCPA- one for sending the unwanted fax, and one for failing ...

Eduardo Pozo v. Stellar Recovery Collection Agency, Inc., No. 8:15-cv-929-T-AEP (M.D.Fla. Sept. 2, 2016)

Defendant called Plaintiff believing it was contacting a third party to collect debt on behalf of another. Plaintiff filed suit, asserting various claims including a claim for violation of the TCPA. The TCPA makes it unlawful to, among other things, initiate calls using any Automatic Telephone Dialing System (ATDS) or artificial or prerecorded voice to any telephone number assigned to a cellular telephone service. At issue was whether a LiveVox Human Call Initiator (HCI) is ...

Coatney v. Synchrony Bank, No. 6:16-cv-389-Orl-22TBS (M.D. Fla. Aug. 2, 2011), Ricks v. Allied Interstate, LLC, No. 3:16-cv-00205-HES-PBD (M.D. Fla. July 11, 2016)

In two recently published cases, the U.S. District Court for the Middle District of Florida stayed proceedings pending the outcome of ACA International v. Federal Communications Commission, which challenges the FCC's July 10, 2015, Declaratory Ruling. The basis for both Motions to Stay was the fact that the ACA appeal bears directly on the what constitutes an Automatic Telephone Dialing System (ATDS). As the Court in ...

Drozdowski v. Citibank, Inc., 2:15-cv-02786-STA-cgc (Aug. 31, 2016)

Husband and wife Plaintiffs filed a class action lawsuit against Defendant regarding calls allegedly made to Plaintiffs' cell phones to collect debt owed on the husband's account after Plaintiffs purportedly revoked consent to be contacted. Defendant filed a Motion to Compel Arbitration, contending that Plaintiffs' claims had to be arbitrated on an individual, non-class basis. At issue were four credit card accounts, three of which belonged to the husband, one of which belonged to the wife and all of which ...

Dixon v. Monterey Fin. Services, Inc., No. 15-cv-03298 (N.D. Cal. Aug. 22, 2016)

At issue before the Court was Plaintiff's Amended Complaint, and Defendant's second motion to strike class definition as a fail-safe class. Noting that "[t]he fail-safe appellation is simply a way of labeling the obvious problems that exist when the class itself is defined in a way that precludes membership unless the liability of defendant is established," the Court concluded that the following class definition was an impermissible fail-safe class:

All Persons within the United States who received ...

Telephone Science Corp. v. Asset Recovery Solutions, LLC, No. 15-cv-5182, 2016 WL 4179150 (N.D. Ill. Aug. 8, 2016)

Plaintiff operates a service called "Nomorobo" designed to help consumers avoid incoming robocalls by analyzing calls made to its "honeypot" numbers using a specialized algorithm enabling it to distinguish between auto and manual dialed calls. Plaintiff filed suit against Defendant alleging that it received 12,240 robocalls between March 2014, and February, 2016, answering 747 of them. Plaintiff claimed to incur a $0.0075 charge for all calls answered ...

Stoops v. Wells Fargo Bank, N.A., Civ. No. 3:15-83 (W.D. Pa. Aug. 12, 2016)

After granting summary judgment for lack of standing against a plaintiff who bought multiple cell phones and numbers for purposes of filing TCPA lawsuits, the Court was faced with a Motion to Amend Judgment wherein Plaintiff argued that dismissal for lack of standing mandated remand to state court for adjudication. At issue was whether a lack of prudential standing results in a lack of subject matter jurisdiction.

Citing extensively from Hvizdak v. Citizens Bank of Pa., No. 14-cv-406 (W.D. Pa. Aug. 6, 2015), the ...

Colette Jenkins v. MGage, LLC, No. 1:14-cv-2791-WSD (N.D. Ga. Aug. 12, 2016)

Plaintiff filed this TCPA lawsuit after receiving 150 text messages over an approximately one year period during which she tried to stop the messages on 17 occasions. Defendant moved for summary judgment, contending the messages were not sent using an Automatic Telephone Dialing System (ATDS) but rather as a result of human intervention. Thus, Defendant argued, since it did not use an ATDS (a vital component of a TCPA claim) to send the messages, the claim should be dismissed.

Granting summary judgment in ...

On August 4, 2016, the FCC released a Declaratory Ruling confirming that schools and utilities making robo calls do not violate the TCPA under certain circumstances. The Ruling, addressed Petitions filed by Blackboard, Inc. and Edison Electric Institute and American Gas Association. Blackboard, Inc. requested that "all automated informational messages sent by an educational organization via a recipient's requested method of notification are calls made for an 'emergency purpose' and thus outside the requirements of the TCPA," including messages made for unexcused ...

Romero v. Department Stores National Bank, 15-cv-193-CAB-MDD (S.D. Cal. Aug. 5, 2016)

On the eve of trial, the Court dismissed Plaintiff's claims for lack of standing relying on the Supreme Court case of Spokeo v. Robbins. At issue in the case was Plaintiff's contention that Defendant called her more than 290 times using an Automatic Telephone Dialing System in violation of the TCPA. After the case was set for trial, Plaintiff prepared a pre-trial memorandum and the Court entered a pre-trial Order prepared by the parties. Neither document referenced any actual damages experienced by ...

On June 10, 2016, the FCC Consumer Advisory Committee recommended promulgation of a Final Rule pursuant to the Bipartisan Budget Act of 2015, containing the following consumer protections:

1. Calls pursuant to the exception would only be permitted to be made to the debtors themselves, not to family, friends or others, including employers;
2. The rule would apply to texts as well as to calls to cell phones;
3. Calls would be allowed only when related to delinquent or defaulted debt, and only related to the debt status, and no telemarketing messages would be permitted to be included;
4. The number of ...

American Association of Political Consultants, Inc. et al. v. Lynch, Civil Action No. 5:16-cv-00252 (E.D.N.C., May 12, 2016).

On May 12, 2016, five politically based organizations filed a suit against Loretta Lynch, in her official capacity as Attorney General of the United States seeking a declaratory judgment that the Telephone Consumer Protection Act's ("TCPA") restrictions on automated or prerecorded calls to cell phones are an unconstitutional violation of their First Amendment rights because the restrictions are content-based and cannot withstand strict scrutiny ...

Spokeo, Inc. v. Robins, No. 13-1339 (May 16, 2016) In a 6-2 decision authored by Justice Samuel Alito, the United States Supreme Court spoke on the issue of standing when statutory violations are alleged, and its opinion could have profound effects on TCPA litigation. Holding that Article III standing requires a concrete injury even in the context of a statutory violation, the Court sent the case back to the U.S. Court of Appeals for the Ninth Circuit, stating that because the "Ninth Circuit failed to fully appreciate the distinction between concreteness and particularization, its ...

As lawsuits asserting claims under the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”), continue to rise in the wake of the consumer-friendly Declaratory Ruling and Order issued by the Federal Communications Commission (“FCC”) last July, see In re Rules & Regulations Implementing the Telephone Consumer Protection Act of 1991, 30 FCC Rcd. 7961, 7978 (2015), the systems and procedures utilized by businesses reliant on automatic dialing have become increasingly important. Indeed, as the United States District Court for the Southern District of Florida ...

Gannon v. Network Telephone Services, Inc., No. 13-56813 (9th Cir. Jan. 12, 2016) In a 3 paragraph unpublished opinion, the U.S. Court of Appeals for the Ninth Circuit affirmed the trial court's denial of plaintiff's motion to certify a class of individuals who allegedly received "unauthorized" text messages stating:

The central issue in the case is whether the text messages were unauthorized. But, the proposed class includes at least the following groups: (a) those, like Gannon, who claim to have called an NTS phone line by mistake and may have discontinued the call before hearing ...

Harrington v. Regions Bank, No. 2:15-cv-522-Ftm-29MRM (M.D. Fla. Jan. 29, 2016) Before the Court was Defendant's Motion to Compel Arbitration and Stay Proceedings. Plaintiffs opposed the Motion, contending that their TCPA claims were not subject to arbitration provisions found in various loan documents executed in connection with the subject debt and other account relationships with Defendant. It was undisputed, however, that the arbitration provisions contained a delegation clause vesting determinations of arbitrability with the arbitrator, not the court. Granting the ...

"Plaintiff's claim clearly falls within the scope of the Card Agreement's arbitration clause, which provides that 'all Claims are subject to ...

Campbell-Ewald Co. v. Gomez, No. 14-857, 2016 WL 228345 (U.S. Jan. 20, 2016) In a much anticipated decision, a majority of the United States Supreme Court held that unaccepted offers of full judgment and settlement do not moot claims. By way of background, Plaintiff filed a TCPA class action. Defendant made an a settlement offer and offer of judgment for the amount of relief the named plaintiff could obtain, then moved to dismiss the case for lack of subject matter jurisdiction when Plaintiff rejected the offers. The Majority (Justices Ginsberg, Kennedy, Breyer, Sotomayor and Kagan)

Thirty-eight members of the Senate and House of Representatives wrote Federal Communications Commission Chairman Tom Wheeler, asking the FCC to limit application of Section 301, to "accomplish several important consumer protection objectives:"

1. Issue an immediate pronouncement stating that no calls can be made pursuant to Section 301, until the FCC finalizes regulations required by the provision
2. Create Regulations governing calls made pursuant to Section 301 that:

Limit permissible calls to those collecting defaulted debt

Limit calls to reassigned numbers

Limit the number ...

On November 4, 2015, after President Obama signed the Bipartisan Budget Agreement of 2015 into law, Senator Ed Markey introduced legislation to repeal Section 301 of the agreement that exempted from the TCPA's requirement of prior express consent calls made relating to debt owed to, or backed by the federal government.

On November 2, 2015, the United States Supreme Court heard oral argument in Spokeo v. Robins, which raises the question of what constitutes requisite injury to support a claim for violation of the Fair Credit Reporting Act. In Spokeo, Plaintiff filed a class action Complaint against Defendant, accusing Defendant of violating the FCRA by publishing false information about him. The trial court dismissed Plaintiff's claim, concluding Plaintiff had not experienced the requisite harm to sustain a claim. The U.S. Court of Appeals for the Ninth Circuit reversed, holding that violation ...

Roberts v. Paypal, Inc., No. 13-16304 (9th Cir. Oct. 20, 2015) Pending before the Court was the trial court's Order granting summary judgment in Defendant's favor concluding that Plaintiff provided "prior express consent" to receive text messages from Defendant by knowingly providing his phone number. The Court of Appeals rejected Plaintiff's argument that his consent was limited, stating "[u]nder the FCC's interpretation, Roberts expressly consented to text messages from PayPal when he provided PayPal his cell phone number. Even if Roberts believed that PayPal would only ...

Leyse v. Bank of America Nat. Ass'n, No. 14-4073N (3rd Cir. Oct. 14, 2015) After receiving a prerecorded telemarketing call on the landline shared with his roommate, Plaintiff filed a class action lawsuit, which was met with a Rule 12(b)(6) Motion to Dismiss. Of pertinence, is the U.S. Court of Appeals' holding that despite the undisputed fact Plaintiff's roommate was the subscriber and intended recipient of the call, Plaintiff had standing to prosecute a TCPA claim. Recognizing that consideration of who is the "called party" is relevant because prior consent of such an individual to ...

Jeffrey M. Stein, D.D.S., M.S.D., P.A., et al. v. Buccaneers Limited Partnership, No. 8:13-cv-02136-SDM-AEP (Oct. 24, 2013) Three dentists, a pest control service and two other alleged recipients of unsolicited faxes selling football tickets filed a class action Complaint against the Tampa Buccaneers for allegedly violating the TCPA. Within three days of removing the case to federal court, Defendant made an offer of judgment under Rule 68 to each Plaintiff. Two days later, Defendant moved to dismiss the Complaint, advocating the absence of an Article III "case or controversy ...

The Telephone Consumer Protection Act defines the phrase Automatic Telephone Dialing System (ATDS) as equipment that 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 numbers. On November 19, 2013, the FCC issued a public notice seeking comment on a Petition for Expedited Declaratory Ruling and/or Expedited Rulemaking filed by the Professional Association for Customer Engagement (PACE). The Petition seeks a Declaratory Ruling: 1. Clarifying that a dialing system is not an ATDS unless it has ...

Jackson Five Star Catering, Inc. v. John R. Beason and Tax Connection Worldwide, LLC, No. 10-10010, 2013 WL 5966340 (E.D. Mich. Nov. 8, 2013) Pending before the Court were several motions, including Defendant business owner's motion for summary judgment, contending he could not be held individually liable for unsolicited fax advertisements sent by a third party on behalf of his company. Defendant argued that he could only be held individually liable if Plaintiff pierced the corporate veil. Rejecting this argument, the court noted that though the Sixth Circuit Court of Appeals has ...

Cellco Partners v. Plaza Resorts, Inc., No. 12-81238-CIV, 2013 WL 5436553 (S.D. Fla. Sept. 27, 2013) Plaintiff Cellco Partnership d/b/a Verizon Wireless filed a TCPA claim alleging millions of calls were placed to Verizon customers, approximately 27,678 of which were made to cell phones Verizon owns, pays for and provides to employees to conduct Verizon business. The ultimate question presented in the case was who possessed the TCPA cause of action, Verizon or its employee, since the TCPA provides that it is a violation of the statute to make a call without the prior express consent of ...

The Telephone Consumer Protection Act (TCPA) has increasingly become a target for consumers and their attorneys for suits aimed at collection agencies. TCPA suits in August rose 15.4 percent from July and 72 percent compared to August 2012. Year-to-date, TCPA suits are up 65 percent according to an article published by InsideArm.

Summary of August lawsuits:

• There were about 1,118 unique plaintiffs (including multiple plaintiffs in one suit).
• Of those plaintiffs, about 373, or (33.4%), had sued under consumer statutes before.
• Combined, those plaintiffs have filed about 1,974 ...

The new FCC rule requiring prior express written consent for all: (1) Autodialed or prerecorded telemarketing calls to wireless numbers; and (2) Prerecorded telemarketing calls to residential lines takes effect today. The rule eliminates the "established business relationship" exemption for such calls to residential lines and requires that telemarketers now obtain a written agreement containing the signature of the called party, including a clear and conspicuous disclosure that: 1. The person allows the seller to make telemarketing calls using an automatic telephone ...

Physicians HealthSource, Inc. v. Multiplan Services, Corp., No. 12-11693-GAO, 2013 WL 2599134 (D. Mass. Sept. 18, 2013) According to the Complaint, Plaintiff did not give Defendant permission to send it faxes. The TCPA prohibits unsolicited advertisements sent via facsimile. But advertisements are exempt from the prohibition if: (1) the sender has an established business relationship with the fax recipient; (2) the sender obtained the recipient's fax number through a voluntary disclosure by the recipient; and (3) the unsolicited fax contains language clearly indicating how ...

Whaley v. T-Mobile, USA, Inc., No. 13-31-DLB-JGW, 2013 WL 5155342 (E.D. Ky. Sept. 12, 2013) Plaintiff opened a cell phone account with Defendant. Terms and conditions of the account included an arbitration provision in bold letters. While Plaintiff was allowed an opportunity to opt out of the arbitration procedures by calling a 1-800 number within 30 days of activating service, he did not exercise this option. According to the Complaint, Defendant later began calling Plaintiff to collect debt from a third party. He filed suit alleging violations of the TCPA and Defendant moved to ...

Hunt v. 21st Mortgage Corp., No. 2:12-cv-2697-WMA, 2013 WL 5230061 (N.D. Ala. Sept. 17, 2013) Pending before the court was a Motion to Compel Discovery during which the issue of what constitutes an Automatic Telephone Dialing System (ATDS) was addressed. The court began its analysis noting that the TCPA defines 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 numbers. Based on this definition, Plaintiff argued that while Defendant's system could not, in the state ...

A class action complaint was filed against Defendant who sent 8,430 faxes to more than 200 people containing business advise. The trial court granted judgment against Defendant in the amount of $4,215,000, which Defendant appealed. Rejecting any argument that a fax recipient must actually print a fax or have otherwise experienced monetary loss to state a claim, the Court stated that the TCPA provides a $500 penalty for annoyance adding that even a recipient who gets the fax on a computer and deletes it without printing experiences some loss; "the value of time necessary to realize that ...

Plaintiff completed a credit application to purchase computers, which required her to provide a home phone number. Plaintiff listed her cell phone number but did not identify it as her cell phone number or indicate Defendant could use an Automatic Telephone Dialing System (ATDS) to call the number. After purchasing several thousand dollars in computer equipment, Defendant began using an ATDS to call Plaintiff, leaving pre-recorded messages on her voicemail concerning debt owed. Thereafter, Plaintiff, sent Defendant a letter asking that the calls regarding her account stop ...

Roy v. Dell Fin. Services, LLC, No. 3:13-cv-738, 2013 WL 3678551 (M.D. Pa. July 12, 2013) Plaintiff, who purchased computers and did not pay debt owed, filed suit against Defendant alleging that Defendant called him using an automatic telephone dialing system or pre-recorded messages more than 1,000 times without his consent. The Complaint further alleged that the calls were made to a 1-800 number for which Plaintiff claims to have been charged a fee any time a call is made to the number. Defendant filed a Motion to Dismiss, which the Court granted stating that "'the FCC has determined ...

Hanley v. Green Tree Servicing, LLC, No. 12 C 4158 (N.D. Ill. March 21, 2013) After allowing Plaintiff multiple opportunities to submit additional authority in opposition to Defendant's Motion to Dismiss, the court dismissed his class action Complaint for failure to state a claim upon which relief can be granted, stating "[t]his case is much ado about nothing. At least that is the conclusion that the Court must reach after reviewing Hanley's wholly inadequate complaint in which next to nothing is pleaded." The court added that "Hanley does not plead how many calls [Defendant ...

Bank v. Independence Energy Group, LLC, No. 12-cv-1369 (E.D.N.Y. May 1, 2013) Pending before the Court was Plaintiff's Motion to Reconsider its dismissal of a class action Complaint based on a conclusion that New York Civil Practice Law 901(b) bars TCPA class actions in federal court. Plaintiff relied on the United States Supreme Court's holdings in Mims v. Arrow Fin. Servs., LLC, and various district court cases supporting Plaintiff's argument. Denying the Motion, the court concluded that Mims does not abrogate the U.S. Court of Appeals' holding in Holster III v. Gatco, Inc, that ...

Larry v. Doctors Answers, LLC, No. cv-12-S-3510-NE, 2013 WL 987879 (N.D. Ala. March 8, 2013 An Alabama Plaintiff sued New Jersey Defendants for violating the TCPA by sending an unsolicited fax advertising material for answering services provided by Defendant. Defendant filed a Motion to Dismiss challenging Personal Jurisdiction, Venue and Plaintiff's ability to state a claim upon which relief can be granted. The court denied the motion on all grounds. With respect to Defendant's challenge to the court's personal jurisdiction, the court recited the United States Supreme Court's ...

Small v. Kmart Holdings, Corp., No. 12-cv-11062, 2013 WL 1157339 (E.D. Mich. March 20, 2013) Pending before the court was Defendant's Motion to Dismiss Plaintiff's TCPA claim contending Defendant sent unsolicited faxes in violation of the law. Also pending before the court was Defendant's Motion to Strike class allegations based on Michigan law prohibiting such actions. Denying the Motion to Dismiss, the court stated "Plaintiff has alleged that the Defendants sent the faxes; that Plaintiff did not give his permission to receive such faxes; there was an insufficient opt-out ...

Wellington Homes, Inc. v. West Dundee China Palace Restaurant, No. 2-12-0740 (Ill App. 2d March 13, 2013) Plaintiff filed suit, placing at issue allegedly unsolicited faxes sent in violation of the TCPA. At issue was the applicable statute of limitations. Defendant's argued that the Illinois two-year statute governing claims brought for statutory damages governed. Plaintiff argued the federal four-year statute of limitations codified in 28 U.S.C. § 1658 governed. The trial court agreed with Plaintiff but certified the question to the appellate court. Holding that the the ...

Bias Yaakov of Spring Valley v. Peterson Nelnet, LLC, No. Civ. 11-00011, 2013 WL 663301 (D.N.J. Feb. 21, 2013) Pending before the court was Defendant's Motion to Reconsider denial of its Motion to Dismiss Plaintiff's TCPA class action Complaint or in the alternative Plaintiff's class action allegations on the grounds that applicable state law prohibited maintenance of such proceedings. In the alternative Defendant requested that the court certify its Order for interlocutory appeal. Refusing to reconsider its Order, the court heeded the Third Circuit's directive in Landsman & ...

Birchmeier v. Caribbean Cruise Line, Inc., 2012 WL 7062748 (N.D.Ill. Dec. 31, 2012) Plaintiffs filed suit alleging Defendants made or caused unsolicited calls to their cell phones in violation of the TCPA while acting under the guise of conducting a political survey to get their foot in the door to sell ocean cruises. Defendants filed Motions to Dismiss, advancing multiple arguments, all of which were rejected. For example, Defendants argued that Plaintiffs ran afoul of Rule 8 by not distinguishing the role of each Defendant. But the court held that Plaintiffs alleged Defendants ...

Bridge v. Ocwen Federal Bank, FSB, No. 1:07—CV—02739, 2013 WL 331095 (N.D. Ohio Jan. 29, 2013) In a case originally filed in 2007, and in which the Complaint was amended several times, Plaintiff asserted a TCPA claim, which was dismissed without prejudice for lack of subject matter jurisdiction. Other claims were also dismissed, including Plaintiff's claim for violation of the Fair Debt Collection Practices Act (FDCPA). Plaintiff appealed the dismissal but only as to the FDCPA claim. Plaintiff's appellate papers specifically stated that Plaintiff did not take issue with the ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

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 ...

Martin v. Cellco Partnership d/b/a Verizon Wireless, et al., No. 12 C 5147, 2012 WL 5048854 (N.D. Ill. Oct. 18, 2012) Plaintiff entered into a wireless contract with Defendant, which he later canceled. Plaintiff sent Defendant a payment with the cancellation notice of the amount he owed under the contract as well as revocation of consent to call his cell phone number. Defendant sent Plaintiff a bill, which included an early termination fee, restocking fee, fees for services used and other taxes and charges. Plaintiff did not pay the fees, and Defendant assigned the debt to three ...

In re Enhanced Recovery Company, LLC, No. MDL 2398 (Oct. 18, 2012 JPML) Pending before the panel were various Plaintiffs' request to centralize TCPA litigation against Defendant in the Northern District of Illinois. Defendant joined the request for centralization, but argued for transfer to the Middle District of Florida. No party opposed centralization. While noting that the cases involved relatively few parties, and actions at present, the Panel concluded that centralization will eliminate duplicative discovery, prevent inconsistent pretrial rulings, including with ...

Buslepp v. Improv Miami, Inc., No. 12-601771-CIV, 2012 WL 4919809 (S.D. Fla. Oct. 16, 2012) Plaintiff filed a purported class action, contending that Defendant, which promotes and hosts events at its comedy club, sent unsolicited commercial text messages to potential customers using an automatic telephone dialing system (ATDS) and without prior express consent in violation of the TCPA. Plaintiff moved for summary judgment on his individual claims, which Defendant opposed contending Plaintiff failed to establish the elements of a claim under the TCPA. Noting that the TCPA ...

Bais Yaakov of Spring Valley v. Peterson's Nelnet, LLC, No. 11-00011, 2012 WL 4903269 (D.N.J. Oct. 17, 2012) Plaintiff's class action complaint placed at issue allegedly unsolicited fax advertisements Defendant purportedly sent in violation of the TCPA. Defendant moved to dismiss the complaint, or in the alternative to dismiss the class action component of the complaint, arguing that New York Civil Practice Law § 901(b), which prohibits maintenance of class actions where statutory penalties are sought unless the statute specifically authorizes class actions, prohibited ...

Evans & Green, LLP v. That's Great News, LLC, No. 11-3340-cv-s-ODS, 2012 WL 4888471 (W.D. Mo. Oct. 15, 2012) Plaintiff law firm filed a class action complaint against an individual and corporate Defendant alleging that Defendants sent numerous unsolicited facsimile advertisements during a four-year period, specifically alleging that Defendants sent 105,826 faxes in the month of March, 2010, three of which were received by Plaintiff. The case was removed to federal court, after which time defense counsel withdrew. After warning the corporate Defendant that counsel must be ...

Chesbro v. Best Buy Stores, LP, No. 11-35784, 2012 WL 4902839 (9th Cir. Oct. 17, 2012) Plaintiff bought a computer from Defendant and signed up for a no interest payment plan to finance the purchase. When Plaintiff filled out the paperwork, he provided his contact information, including his phone number. The parties dispute whether Plaintiff signed up for Defendant's reward program. According to Defendant, as a member of its reward plan, Plaintiff consented to Defendant contacting him with program-related communications. Plaintiff claims that while registered with the national ...

3081 Main Street, LLC d/b/a New England Wine & Spirits v. Business Owners Liab. Team LLC d/b/a Bolt Ins. Agency, No. 3:11-cv-1320 (SRU), 2012 WL 4755048 (D. Conn. Sept. 24, 2012) Pending before the court was a Motion for Class certification and for Stay of Motion for Class Certification. Recognizing that class certification is only appropriate if the court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied, the court concluded that such analysis was impracticable because Plaintiff filed the Motion for Class Certification before any ...

Meyer v. Portfolio Recovery Associates, LLC, No. 11-56600, 2012 WL 4840814 (9th Cir. Oct. 12, 2012) Pending before the U.S. Court of Appeals for the Ninth Circuit was the district court's: (1) Provisional certification of a class consisting of individuals with cell phone numbers that Defendant did not obtain from either a creditor or the class member, where the cell phone number had a California area code, or Defendant's records identified the class member as living in California; and (2) Preliminary injunction order restraining Defendant from using its dialer to place calls to cell ...

Buslepp v. B & B Entertainment, LLC, No. 12-60089-CIV, 2012 WL 4761509 (S.D. Fla. Oct. 5, 2012) Plaintiff's claims in this purported class action arose out of a contention that he received unsolicited commercial text message solicitations from an adult night club. Both Plaintiff and Defendant moved for summary judgment. Defendant argued that its Rule 68 Offer of a $6,000 Judgment mooted Plaintiff's claims. The court rejected this argument for two reasons: (1) The offer was silent with respect to Plaintiff's claim for injunctive relief, and, as such, did not afford full relief; and ...