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

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In Lee v. Stonebridge Life Ins. Co., --- F.Supp.2d ----, 2013 WL 542854 (N.D.Cal. 2013), Judge Seeborg certified a TCPA-text message class based on the following facts. In this putative class action, plaintiff alleges that defendants violated the Telephone Consumer Protection Act, 42 U.S.C. §§ 227 et seq. (“TCPA”), by sending unsolicited text messages to consumers' cell phones. Plaintiff seeks… Read More

In Gragg v. Orange Cab Co., Inc., 2013 WL 195466 (W.D.Wash. 2013), Judge Lasnik found that Plaintiff’s TCPA failed under Iqbal/Twombly due to failure to plead an ATDS.  However, Judge Lasnik set forth the standards for what a Plaintiff would have to allege to properly plead use of an ATDS.  The Plaintiff alleges that he received an unsolicited text message… Read More

On November 29, 2012, the FCC issued a Declaratory Ruling that sending a one-time confirmatory text message within five minutes of receipt of a consumer's request that no further text messages be sent does not violate the TCPA or the FCC's rules as long as the sender had prior express consent to send text messages using an automatic telephone dialing system. The FCC… Read More

In Pinkard v. Wal-Mart Stores, Inc., 2012 WL 5511039 (N.D.Ala. 2012), Judge Smith dismissed a TCPA texting class action because Plaintiff had provided her cellular telephone number to Wal-Mart at the time of sale. Plaintiff's putative class action complaint asserts a single cause of action under the Telephone Consumer Protection Act of 1991, 47 U.S.C. § 227 et seq. (“TCPA”).… Read More

In Agne v. Papa John's Intern., Inc., --- F.R.D. ----, 2012 WL 5473719 (W.D.Wash. 2012), Judge Coughenour certified a TCPA class action against PapaJohn’s pizza for advertising text messages send to thousands of consumers. Plaintiff alleges that Defendants violated state and federal law when they sent her and thousands of others unsolicited text messages advertising Papa John's pizza products.  Papa… Read More

In Ryabyshchuck v. Citibank (South Dakota) N.A., 2012 WL 5379143 (S.D.Cal. 2012), Judge Gonzalez issued a rare decision applying common sense to the TCPA.   Plaintiff filed a class action against the defendant under the TCPA arising out of confirmatory text messages that were sent to cellular phone numbers voluntarily submitted to Citibank via online credit card applications. Plaintiff had provided… Read More

In Thomas v. Taco Bell Corp., --- F.Supp.2d ----, 2012 WL 3047351 (C.D.Cal. 2012), Judge Carney found that the TCPA imposes vicarious liability, but found that none existed under the facts of the case. Section 227(b)(1)(A)(iii) of the TCPA provides as follows:  It shall be unlawful for any person within the United States, or any person outside the United States… Read More

In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS.  Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More

In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message. The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is… Read More

In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More

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