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 ...
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 ...
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:"
- Issue an immediate pronouncement stating that no calls can be made pursuant to Section 301, until the FCC finalizes regulations required by the provision
- 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 ...
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 ...
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 ...
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 ...
Barton v. Ocwen Loan Servicing, LLC, Civil No. 12—162 (MJD/JJG), 2012 WL 449860 (D.Minn. Sept. 26, 2012) Plaintiff asserted several claims relating to Defendants' alleged efforts to collect mortgage debt. Dismissing Plaintiff's TCPA claim for failure to state a claim upon which relief can be granted, the court stated "Plaintiff alleges that Defendants violated the TCPA by contacting her on her cell phone. The TCPA prohibits the use of automated telephone equipment to a cellular telephone for which the party is charged for the call. 47 § 227(b)(1)(A)(iii). The TCPA does not ...
Bank v. Sparks Energy Holdings, LLC, Civ. No. 4:11-cv-4082, 2012 WL 4097749 (S.D. Tex. Sept. 13, 2012) Plaintiff, a citizen of the State of New York, filed a purported class action lawsuit in Texas against Defendant. At issue was an allegedly unsolicited voice message Plaintiff received on his residential phone line stating: "Hello, this is [omission in the original] pertaining to your current electric bill with Con Edison, reference number 42648967. We are now able to offer you a lower rate on your electricity bill through the recent government deregulation. Press five to be ...
Owners Ins. Co. v. European Auto Works, Inc., No. 11-3068, 2012 WL 4052406 (8th Cir. Sept. 17, 2012). At issue in the declaratory judgment action filed by Owners Insurance Company against European Auto Works, Inc. was whether Plaintiff's insurance policy provided coverage for a $1,951,500 settlement of a class action lawsuit, which was only enforceable against the insurer, not the insured, if coverage was found to exist. Recognizing that the primary issue presented was whether the advertising injury provision for “oral or written publication of material that violates a person's ...
FDS Restaurants, Inc. v. All Plumbing, Inc., Civ. No. 12-394 (RMC), 2012 WL 4052847 (D.D.C. Sept. 14, 2012). In FDS Restaurants, Inc. v. All Plumbing, Inc., Defendants sought to remove a TCPA case to federal court, arguing that the United States Supreme Court's holding in Mims v. Arrow Fin. Servs. LLC, 132 S.Ct. 740 (2012) recognizing that the TCPA creates federal question jurisdiction was a triggering event allowing removal. While cases not originally removable can be removed within 30 days after receipt through service or otherwise of an amended pleading motion, order, or other ...
Mey v. Pinnacle Security, LLC, No. 5:11-cv-47, 2012 WL 4009718 (N.D. W.Va. Sept. 12, 2012) Plaintiff filed a purported class action lawsuit relating to a call from an unidentified party, advertising Defendant's goods and services received on a cell phone she owned but was being used by her son. Defendant moved for summary judgment, arguing that it did not make the call, and, as such, was not liable for the alleged TCPA violation. Concluding that the TCPA authorizes two private causes set forth in: (1) 47 U.S.C. § 227(c)(5); and (2) 47 U.S.C. § 227(b)(3), the court held that Plaintiff could ...
While lawsuits against accounts receivable management firms are down 5 percent compared to the same point in 2011, lawsuit asserting claims for violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 are up almost 47 percent according to an article published by insideARM.com
A proposed settlement has been reached in a class action filed against Jiffy Lube relating to 2.3 million marketing text messages allegedly sent on April 21, 2010. Pursuant to the terms of the settlement class members will be provided with certificates for goods/services valued up to $46,844,780.00, with a cash redemption value up to $35,133,585.00. The settlement also proposes that class counsel receive up to 366,300 certificates (with a cash equivalent of $4,750,000, representing approximately 13.51 percent of the cash value made available to the class).
In a class action lawsuit brought on behalf of those purportedly receiving text messages regarding the XBOX gaming system, Defendant argued that the absence of allegations that Plaintiff was himself charged by his wireless carrier for the text message he received, combined with the Complaint's reliance on general allegations of a “growing problem” of “wireless spam” and other non-particularized forms of harm, were insufficient to establish a cognizable injury to Smith. Plaintiff countered, contending that he experienced–and alleged–numerous sufficiently ...
The phrases “artificial” and “pre-recorded voices” are self-explanatory — for example, an artificial voice is a computer generated voice, and a pre-recorded voice is simply a pre-recorded message that an individual would hear when answering a call. The TCPA defines Automatic Telephone Dialing Systems (ATDS) as equipment that has the capacity to store or produce telephone numbers to be called using a random or sequential number generator to dial numbers. ATDS have also been described as including: (1) predictive dialers, i.e., equipment that eliminates the need for time ...
Though the TCPA is a federal statute, until recently, a split of authority existed as to whether federal district courts could exercise original federal question jurisdiction over TCPA claims. This was due to the fact that the Act contains distinct provisions governing civil actions brought by private parties, and state attorneys general. On the one hand, the TCPA allows private parties to bring TCPA claims in an appropriate court of a state if otherwise permitted by the laws or rules of that state. States attorney generals on the other hand are limited to bringing TCPA claims in ...
Private party litigants can seek the following relief under the TCPA: (1) Injunctive relief; (2) Actual damages or $500 for each violation of the Act (whichever is greater); or (3) Both Injunctive relief and damages (47 U.S.C. § 227(b)(3)). Courts also have the discretion to treble damage awards if a violation of the Act is "willful and knowing," i.e., each $500 violation could be increased to $1,500 in the court's discretion. What constitutes a "willful and knowing" violation of the TCPA depends on the court in which the action is filed. Specifically, some courts hold that a defendant ...
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is a federal statute that was enacted in 1991 to address concerns relating to telemarketing/solicitation practices. It amended the Communications Act of 1934, and has been characterized by Manuel H. Newberger, in FDCPA Updated On The TCPA, Time-Barred Debt and Voice Mail Messages, as “one of the new weapons of choice of those suing debt collectors.” But it has far broader application. For example, it has entangled not only debt collectors but also other businesses ranging from local businesses to national banks and ...
Thrasher-Lyon v. CCS Commercial, LLC, No. 11 C 04472, 2012 WL 3835089 (E.D. Ill. Sept. 4, 2012) Pending before the Court was the question of whether "prior express consent" under Section 227(b)(1)(A) of the TCPA means consent to be contacted in general, or consent to be contacted via "robo-calls." By way of background, Plaintiff, who was involved in a car accident, gave her cell phone number to the driver whose car she hit. The driver's insurer called Plaintiff for information about the accident. During the call, the agent asked Plaintiff for the best way to reach her. She said the number ...
The Telephone Consumer Protection Act, 47 U.S.C. § 227 (TCPA) is a federal statute that was enacted to address concerns relating to telemarketing/solicitation practices. During the past several years, however, the Act has been applied to render multi-million dollar verdicts and settlements against both big and small companies across the country. Judicial interpretation of the Act has also steadily increased and undergone significant change. For example, until recently, many Circuit Courts of Appeal believed that the TCPA did not create federal question subject matter ...