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 While Plaintiff admitted signing up to receive the messages, Plaintiff claimed to have later withdrawn consent through responses such as: (1) "I've changed my mind and don't want to receive these anymore,"; (2) "Please do not send any further messages."; and (3)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 ...