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

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District Court (Cal.) Finds that a Text Message is Not a “Pre-Recorded Voice” under the TCPA

by Scott J. Hyman |

In Eggleston v. Reward Zone USA LLC, No. 2:20-cv-01027-SVW-KS, 2022 U.S. Dist. LEXIS 20928, at *11-14 (C.D. Cal. Jan. 28, 2022), Judge Wilson dismissed a TCPA "pre-recorded voice" case premised on the theory that the standard text messages that she received did not constitute a "voice" under the TCPA. Plaintiff also alleges that Defendant's text messages violated § 227(b) because… Read More

District Court (Cal.) Says Non-Profit Advocacy Group’s Texts’ Endorsement of Products Aligning With Non-Profit’s Mission Eviscerated the TCPA’s Non-Profit Exemption

by Scott J. Hyman |

In Massaro v. Beyond Meat, Inc., No. 3:20-cv-00510-AJB-MSB, 2021 U.S. Dist. LEXIS 46980, at *15-20 (S.D. Cal. Mar. 12, 2021), Judge Battaglia allowed a TCPA claim to proceed against PETA because their texts endorsing Beyond Meat constituted advertisements. Here, PETA appears to argue there is a blanket exemption for non-profit organizations, (Doc. No. 30-1 at 19-22), while Plaintiff contends PETA's… Read More

District Court (Fla.) Follows 11th Cir. and Says No ATDS Was Used to Send Text Messages

by Scott J. Hyman |

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

District Court (Nev.) Finds TCPA Claim Properly Pleaded Against Text Transmitter Service

by Scott J. Hyman |

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

District Court (Cal.) Says Mere Passage of Time Does Not Revoke TCPA Consent in Text Message Case, But Scope of Such Consent Was a Triable Issue of Fact

by Scott J. Hyman |

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

9th Cir. Affirms Ruling that 3 Lenders/2 Marketing Companies Were Not Vicariously Liable for Text Messager’s TCPA-Violating Texts

by Scott J. Hyman |

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

District Court (Cal.) Distinguishes Car-2-Go; Says Confirming Text Might Be An “Advertisement

by Scott J. Hyman |

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

District Court (Ind.) Denies Class Cert. in TCPA “Stop-texting” Class Action Because of Individualized Facts as to Whether Means Used to Revoke Consent to Be Called Was Reasonable Under 2015 FCC Order

by Scott J. Hyman |

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

First, they came for the debt collectors. Then, they came for the sports teams. Now, it’s academia. District Court (Ill.) Says DePaul University Can’t Get Out of TCPA Case at the Pleading Stage

by Scott J. Hyman |

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

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