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 ...