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 ...