CEB Prac. Guide § 2B.11: Standing

In Lennartson v. Papa Murphy's Holdings, Inc., 2016 WL 51747, at *1-2 (W.D.Wash., 2016), Judge Leighton stayed a TCPA class action pending Spokeo even though the Court recognized that the Plaintiff suffered actual damages and thus had Article III standing. In 2011, Papa Murphy's started texting those who had signed-up on its website to receive promotional messages and those who had texted… Read More

In Telephone Science Corporation v. Asset Recovery Solutions, LLC, 2016 WL 47916, at *4 (N.D.Ill., 2016), Judge St. Eve stayed a TCPA case pending the outcome of Spokeo.  Telephone Science operates a service called “Nomorobo”, designed to help consumers avoid incoming computerized telephone calls that the Federal Trade Commission refers to as “robocalls”—calls in which the caller uses a recorded or… Read More

In Telephone Science Corporation v. Hilton Grand Vacations Company, LLC, 2015 WL 7444409, at *2-3 (M.D.Fla., 2015), Judge Mendoza stayed a TCPA fax class action pending the outcome of Spokeo.   As an initial matter, Telephone Science attempts to avoid a stay by distinguishing Spokeo, wherein the core issue is whether the alleged FCRA violation is a sufficient injury-in-fact. Particularly, Telephone Science… Read More

In Leyse v. Bank of America Nat. Ass'n, 2015 WL 5946456, at *7 (C.A.3 (N.J.),2015), the Court of Appeals for the Third Circuit said that a roommate who was the regular user of a cell phone was afforded standing by the TCPA. From this evidence, it is clear that the Act's zone of interests encompasses more than just the intended… Read More

In Danehy v. Time Warner Cable Enterprise LLC, 2015 WL 5534285, at *2-3 (E.D.N.C.,2015), Judge Flanagan adopted a Magistrate's ruling on summary judgment in favor of a TCPA defendant. In his objections, plaintiff takes issue with the magistrate judge's determination that SkyCreek did not utilize an ATDS when making calls to plaintiff's telephone. The court does not reach the merits of… Read More

In Ikuseghan v. MultiCare Health System, 2015 WL 4600818, (W.D.Wash.,2015), Judge Settle found that the TCPA affords Article III standing to litigants, and certified a TCPA class.  As to standing, Judge Settle found: MultiCare first argues that Ikuseghan lacks Article III standing to bring this suit. . . . In addition to economic injury, Ikuseghan alleges that MultiCare violated her statutory rights… Read More

In Boise v. ACE USA, Inc., 2015 WL 4077433, at *3-4 (S.D.Fla.,2015), Judge Cooke found that a TCPA Plaintiff had Article III standing, and that his case was not mooted by a Rule 68 offer.    The District Court found that 11th Circuit precedent bound it on the question of Article III standing. Palm Beach Golf Center–Boca, Inc. v. Sarris, 781… Read More

In Sacchi v. Care One, LLC, 2015 WL 3966034 (D.N.J.,2015), Judge Wigenton dismissed a TCPA class action when discovery revealed that Plaintiff's counsel was the primary user of the telephone number at issue. On February 3, 2014, Plaintiff, John Sacchi, filed a putative class-action complaint against Defendant Care One alleging that Care One maintained an illegal telephone solicitation practice in violation… Read More

In Spokeo v. Robins,742 F.3d 409 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit found that FCRA itself provided Article III standing, even if the Plaintiff could prove no actual damage.  Spokeo contends, however, that Robins cannot sue under the FCRA without showing actual harm. But the statutory cause of action does not require a showing of… Read More

In Soulliere v. Central Florida Inv., Inc., 2015 WL 1311046 (M.D.Fla. 2015), Judge Whittemore found that a non-subscriber/regular user of a cellphone had standing to bring a TCPA claim and that there was a triable issue of fact regarding whether there was consent or whether such consent had been revoked. Defendants argue that Plaintiff does not have standing because he… Read More

In Telephone Science Corp. v. Trading Advantage, LLC, 2015 WL 672266 (N.D.Ill. 2015), Judge Guzman found that the TCPA was not limited to consumer protection only; it applied to autodialed calls made to a commercial business' cellular telephones, too. Telephone Science Corporation (“TSC”) brings this case under the Telephone Consumer Protection Act (“TCPA”) seeking relief for telemarketing calls defendants made to… Read More

In Meyer v. Bebe Stores, Inc., 2015 WL 431148 (N.D.Cal. 2015), Judge Rogers found that a TCPA plaintiff stated a claim for a class-wide TCPA violation. Plaintiff is a California resident. (FAC ¶ 6.) FN1 Defendant, a California corporation, operates retail clothing stores throughout the United States. (Id.¶¶ 7–8, 15.) On or about December 10, 2013, plaintiff visited one of… Read More

In Maraan v. Dish Network, L.L.C., 2014 WL 6603233 (S.D.Ohio 2014), Judge Spiegel, found that a subscriber to a cellular telephone service had standing under the TCPA even if the subscriber was not the party who actually answered the call. On summary judgment, however, Defendant has reversed course on this issue, and now maintains that Plaintiff, because he is merely… Read More

In Balschmiter v. TD Auto Finance LLC, 2014 WL 6611008 (E.D.Wis. 2014), Judge Stadtmueller denied class certification of a TCPA class defined essentially as either references or cell-phone transferees or both: “All persons within the United States who, on or after October 21, 2009, received a non-emergency telephone call from or on behalf of TDAF to a cellular telephone through… Read More

In Meyer v. Diversified Consultants, Inc., 2014 WL 5471114 (M.D.Fla. 2014), Judge Toomey found that a “regular user” was the “called party” under Osorio/Breslow. In the Motion to Dismiss, Defendant argues that “[b]ecause plaintiff was not the subscriber of the telephone, she was not the ‘called party’ under the TCPA and Count I of the class action complaint must be… Read More

In Palm Beach Golf Center–Boca, Inc. v. Sarris, --- F.3d ----, 2014 WL 5471916 (11th Cir. 2014), the Court of Appeals for the Eleventh Circuit held that the TCPA is a “bounty” statute that affords Article III standing in federal courts even without actual injury. The TCPA provides standing under this theory because it is a “bounty” statute, specifically providing… Read More

In Leyse v. Bank of America, 2014 WL 4426325, (D.N.J. 2014), here, Judge Wiggington found that a roommate who answered a call intended for the other roommate who was the defendant's debtor lacked standing to sue under the TCPA. In line with that reasoning, Judge Koeltl found that “while the prerecorded message did not address Dutriaux by name and it was Leyse who… Read More

In Birchmeier v. Caribbean Cruise Line, Inc., --- F.Supp.2d ----, 2014 WL 3907048 (N.D.Ill. 2014), Judge Kennelly held that a TCPA class was ascertainable, rejected the Defendant’s argument that, under Soppet, only the subscriber had standing and it could not be determined whether the subscriber answered the cellular telephone. Defendants appear to be making a two-part argument: first, the people… Read More

In Warnick v. Dish Network LLC, 2014 WL 2922660 (D.Colo. 2014), Judge Daniel refused to certify a TCPA class against DISH Network as documented in DISH’s “TCPA Tracker” database. Plaintiff Seth Warnick is a consumer of cellular telephone services who complains about pre-recorded “robocalls” received from Defendant DISH Network LLC [“DISH”] on his cellular telephone without his prior express consent.… Read More

In Breslow v. Wells Fargo, here, the 11th Circuit followed the 7th Circuit's Soppett decision to find that "called party" under the TCPA is the subscriber to the cellular telephone.  "At bottom, the FCC recognized that debt collectors are in a better position to determine whether a party’s consent is still valid. That is, a person who is assigned a… Read More