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CEB Prac. Guide § 2B.15: Prior Express Consent

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In Harrington v. RoundPoint Mortgage, Judge Chappelle denied a defendant's summary judgment motion, finding a triable issue of fact whether a third party could and did consent for the called party to be called on their cell phone by an ATDS. Defendants next argue that they are entitled to summary judgment on Count one because Harrington provided prior express consent to… Read More

In Flores v. Access Insurance Company, 2017 WL 986516, at *8 (C.D.Cal., 2017), Judge Snyder found that Plaintiff adequately pleaded use of an ATDS to send a text message and that the McCarran-Ferguson Act did not bar a TCPA Plaintiff's claim against the insurer.  Judge Snyder also said that dual purpose text messages can trigger the TCPA's written consent requirement.… Read More

In Van Patten v. Vertical Fitness Group, the Court of Appeals for the Ninth Circuit held that a plaintiff who alleges he received unconsented to text messages or telephone calls has standing to bring a TCPA claim against the sender. Unwanted messages invade privacy interests that are similar to interests protected at common law and to which Congress gave statutory protection.… Read More

In St. Clair v. CVS Pharmacy, Inc. 2016 WL 7489047, at *2 (N.D.Cal., 2016), Judge Chhabria denied a motion to dismiss a TCPA grounded in automated calls reminding of prescription refills. Another strike against CVS's argument is that the FCC has addressed automated prescription reminders in a different context. In addition to the two statutory exemptions to TCPA liability (“emergency purposes”… Read More

In Lawrence v. Bayview Loan Servicing, LLC, --- Fed.Appx. ----2016 WL 7407243 (11th Cir. 2016), the Court of Appeals for the 11th Circuit found that a TCPA re-established consent to be called by an autodialer when he gave his telephone number again to the caller without qualification. Lawrence argues that the District Court erred by finding that, as a matter of law,… Read More

In Warciak v. One, Inc., 2016 WL 7374278 (Approx. 5 pages), Judge Kennelly allowed a TCPA claim to proceed against a social networking app. One argues that the After School App functions just like TextMe and therefore that its users initiate the allegedly unlawful text messages. Def.'s Mem. in Supp. of Mot. to Dismiss 9–10. But Warciak's allegations identify significant differences between… Read More

In Chladni v. University of Phoenix, Inc., 2016 WL 6600045, at *3 (E.D.Pa., 2016), Judge Leeson found that a TCPA Plaintiff could not invalidate her consent to receive autodialed calls on the basis that she was not given a meaningful opportunity to avoid them. It is undisputed that on June 22, 2015, when Chladni submitted a job application online, she… Read More

In Wick v. Twilio Inc., 2016 WL 6460316, at *2–3 (W.D.Wash., 2016), Judge Lasnik dismissed a TCPA Plaintiff's claim against Twilio on the basis that the Plaintiff consented to receive the text messages at issue. The parties disagree as to whether the text and call at issue qualifies as telemarketing. If the text and call do qualify as telemarketing, then… Read More

In Aderhold v. Car2Go N.A., LLC,  2016 WL 4709873 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit held that a TCPA plaintiff consented to receive texts messages as part of the registration process for a car-sharing program. Eric Aderhold appeals the district court's dismissal of his putative class action under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.… Read More

In Reyes v. Educational Credit Management Corporation, 2016 WL 2944294, at *3 (S.D.Cal., 2016), Judge Bashant granted summary judgment to a TCPA defendant on the basis that the Plaintiff gave express consent to be called on his cellular telephone.  As to one of the calls wherein the Plaintiff gave oral consent during that call, the Court found that the Plaintiff had… Read More

In McCaskill v. Navient Solutions, 2016 WL 1367228 (M.D. Fla. 2016), here, Judge Covington of the USDC for the Middle District of Florida granted partial summary judgment to a TCPA plaintiff whose cellular telephone received 727 telephone calls to her cellular telephone arising from collection on student loans taken out by her daughter.  Since the defendant bore the burden to prove, but could… Read More

In Schwartz-Earp v. Advanced Call Center Technologies, LLC, 2016 WL 899149, at *1-2 (N.D.Cal., 2016), Magistrate Judge James denied summary judgment to a debt collector under the FDCPA, but granted summary judgment against the Plaintiff on her TCPA/common law claims. The facts were as follows: On or about February 3, 2014, Plaintiff applied in-store for a JCPenney-branded credit card, issued… Read More

In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff's motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination. Plaintiff's interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary… Read More

In Zean v. Fairview Health Services, 2016 WL 740412, at *3 (D.Minn., 2016), Judge Magnuson found that lack of consent was part of a TCPA Plaintiff's pleading obligation, and then found that the Plaintiff's providing his cell phone number constitute express consent to receive telemarketing calls. Elkins found support in the decisions of “one circuit court and many district courts,”… Read More

In Baisden v. Credit Adjustments, Inc., 2016 WL 561735, at *5-7 (C.A.6 (Ohio),2016), the Court of Appeals for the Sixth Circuit applied the doctrine of intermediary consent to find that a hospitals debt collectors had authority to call the hospital's debtors on their cell phones when the written consent was broad enough to include disclosure of such phone numbers "to others".… Read More

In Baird v. Sabre, Inc., 2016 WL 424778, at *1 (C.A.9 (Cal.),2016), the Court of Appeals for the Ninth Circuit confirmed that giving your cell number without contrary instructions constitutes consent to be called on it. The TCPA restricts certain calls1 using an automatic dialing system2 or an artificial or prerecorded voice absent “prior express consent.” 47 U.S.C. § 227(b)(1)(A). The… Read More

In Johnson v. Yahoo!, Inc., 2016 WL 25711, at *1-2 (N.D.Ill. 2016), Judge Shah found that part of a TCPA class could be certified against Yahoo!.  The facts were as follows. Yahoo! Messenger also allows users to send personalized messages to people's cell phones through a feature called Mobile SMS Messenger Service, or PC2SMS. PC2SMS bridges the gap between the online and… Read More

In Cholly v. Uptain Group, Inc., 2015 WL 9315557, at *3 (N.D.Ill., 2015), Judge Gettlemen found that the bankruptcy laws' automatic stay does not constitute revocation of consent under the TCPA. Despite the fact that Count I of plaintiff's complaint sufficiently states a claim for relief with respect to her non-consent allegations, in light of defendants' motions to strike, the… Read More

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