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

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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

In Roberts v. PayPal, Inc., --- Fed.Appx. ----, 2015 WL 6524840 (9th Cir. 2015), the Court of Appeals for the Ninth Circuit affirmed the district court’s grant of summary judgment to PayPal in a TCPA matter based on a finding that the consumer had consented to receive text messages on his cellular telephone. David Roberts appeals the district court’s grant… Read More

In Huricks v. Shopkick, Inc., 2015 WL 5013299, at *1 (N.D.Cal., 2015), Judge Chesney granted summary judgment to a TCPA defendant based on the FCC's 2015 order. In the operative complaint, the First Amended Complaint (“FAC”), plaintiffs allege that Shopkick “operates a shopping application for Apple and Android devices that urges consumers to purchase retail goods for sale close to… Read More

In Murphy v. DCI Biologicals Orlando, LLC, 2015 WL 4940800, at *1 (C.A.11 (Fla.),2015), the Court of Appeals for the Eleventh Circuit affirmed the FCC's rulings on what constitutes prior express consent in a TCPA/debt collection case. Mr. Murphy alleged that DCI stored donor record information on a commercial database it operated and that it provided the donor information to third… Read More

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