CEB Prac. Guide § 2B.05: "Call" Defined -- Text Messages

In Northrup v. Innovative Health Ins., No. 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851, at *12-21 (M.D. Fla. Feb. 25, 2020), Judge Honeywell granted summary judgment to a TCPA defendant. The Eleventh Circuit's holding that a device qualifies as an ATDS only if it uses a random or sequential number generator resolved a large part of the consolidated appeals. One of… Read More

In Bauman v. Saxe, No. 2:14-cv-01125-RFB-PAL, 2019 U.S. Dist. LEXIS 23351 (D. Nev. Feb. 13, 2019), Judge Boulware found that a TCPA plaintiff stated a claim against Twilio, who allegedly transmitted telemarking text messages in violation of the TCPA.  The facts alleged were as follows: The Saxe Defendants are: David Saxe; David Saxe Productions, Inc.; David Saxe Productions, LLC; Saxe Management,… Read More

In Walintukan v. SBE Entertainment Group., LLC., 2018 WL 2357763, at *3 (N.D.Cal., 2018), Judge Tigar denied a TCPA defendant's summary judgment motion. Defendants argue that “the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint.”… Read More

In Kristensen v. Credit Payment Services, Inc., 2018 WL 343758, at *3 (C.A.9 (Nev.), 2018), the Court of Appeals for the Ninth Circuit found that 3 lenders and 2 marketing companies were not vicariously liable for an illegal text messaging campaign. Under these settled principles, the district court did not err in concluding that Kristensen failed to raise a genuine issue… Read More

In San Pedro-Salcedo v. The Haagen-Dazs Shoppe Company, Inc., 2017 WL 4536422, at *2 (N.D.Cal., 2017), Judge Davila found that a confirming text may be, on the facts pleaded, an advertisement that triggers the TCPA. Defendants contend that the text is not advertising or telemarketing because it does not encourage Plaintiff to purchase property, goods or services. Plaintiff argues that the… Read More

In Lanteri v. Credit Protection Assocation, LP, 2017 WL 3621299, at *4 (S.D.Ind., 2017), Judge Lawrence refused to certify a TCPA "stop-texting" revocation of consent class action. The FCC has stated that “[c]onsumers have a right to revoke consent, using any reasonable method.” Federal Communications Commission Record, F.C.C. 15-72, 23, appeal docketed as ACA Int'l v. FCC, No. 15-1211 (D.C.C.… Read More

In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More

In Wick v. Twilio, Inc., 2017 WL 2964855, at *4 (W.D.Wash., 2017), Judge Laznik found that Twilio might have used an ATDS, if it was Twilio who placed the call. Contrary to Twilio's argument, the FCC has not created a blanket rule immunizing from TCPA liability cloud-based service providers that transmit third-party content. Rather, the totality of the facts and… Read More

In Reichman v. Pshmark, Inc., 2017 WL 2104273, at *2–3 (S.D.Cal., 2017), the Court granted summary judgment on the basis that totality of the circumstances did not trigger the TCPA. In determining whether an app or its user is the maker of a call, the FCC explained that it looks to “the totality of the facts and circumstances surrounding the… Read More

In Blow v. Bijora, Inc., 2017 WL 1731494, at *6 (C.A.7 (Ill.), 2017), the Court of Appeals for the Seventh Circuit held that the district court erred in granted summary judgment on the basis that no ATDS was used. Citing cases that predate the FCC's most recent rulings, Akira argues that Opt It's software must be able to dial random… Read More