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

In Emanuel v. Los Angeles Lakers, Inc., 2013 WL 1719035 (C.D.Cal. 2013), Judge Wu found that the Plaintiff consented to receive confirmatory text messages from the Los Angeles Lakers by providing his cellular telephone number to the Lakers in an attempt to get his text message on the Jumbo-tron.  The facts were as follows: The First Amended Complaint (“FAC”) alleges that… Read More

Ed.:  to my TCPA readers, this case has it all . . . In Jamison v. First Credit Services, Inc. --- F.R.D. ----, 2013 WL 1248306 (N.D.Ill. 2013), Judge Kendall denied a motion for class certification in TCPA case.  Plaintiff was a convicted felon. He pled guilty in 2008 to access device fraud. Specifically, he was part of a scheme to steal credit… Read More

We previously reported on the Thrasher-Lyon v. CCS Commercial LLC case, and its interlocutory appeal to the Court of Appeals for the 7th Circuit. Appellants have filed their opening brief here. Read More

In Nigro v. Mercantile Adjustment Bureau, LLC, 2013 WL 951497 (W.D.N.Y. 2013), Judge Skretny granted summary judgment to a debt collector on Plaintiff’s FDCPA and TCPA claims. As to the FDCPA claim, Judge Skretny found no actionable telephonic harassment. Defendant correctly asserts that, under the circumstances of this case, the 72 phone calls in a nine-month period are insufficient as… Read More

GroupMe and the Cargo Airline Association have filed Petitions to the FCC, asking the FCC to re-visit its definition of autodialer and whether consent can be given by someone other than the called party.  See the GroupMe Notice of Req for Comment by FCC, US Chamber of Commerce's Comments to the Petition, and a Notice of Ex Parte Meeting with FCC filed by… Read More

In Moore v. CCB Credit Services, Inc., 2013 WL 211048 (E.D.Mo. 2013), Judge Sippel found no actionable FDCPA harassment, but held the matter over for trial on the issue of consent and charges for calls under the TCPA.  The District Court found that the number of calls did not amount to actionable harassment: It is undisputed that CCB made 65… Read More

Cases Holding that TCPA Does Not Allow Revocation of Consent In Saunders v. NCO Financial Systems, Inc., 2012 WL 6644278 (E.D.N.Y. 2012), Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could… Read More

In Saunders v. NCO Financial Systems, Inc., here, Judge Cogan held that when Plaintiff gave his cellular telephone number to incur the debt (for PACER services of all things), Plaintiff consented to be called on his cellular telephone under the TCPA and that such consent could not be revoked.     Read More

On December 28, the Court of Appeals for the Ninth Circuit in Meyer v. Portfolio Recovery Services, 2012 WL 6720599  (9th Cir. 2012) denied rehearing of its previous opinion, but amended its opinion in the manner industry requested in its Amicus brief.  (weblog post regarding decision: http://www.calautofinance.com/?p=3193); industry support for re-hearing: http://www.calautofinance.com/?p=3393)) Specifically, industry asked the Court of Appeals to… Read More

In Balthazor v. Central Credit Services, Inc., 2012 WL 6725872 (S.D.Fla. 2012), Judge Cohn denied certification of a TCPA class action, finding the issue of consent to be too individualized. The Court finds the reasoning of Hicks and Gene & Gene, LLC persuasive. Resolution of each putative class member's TCPA claim would necessarily involve an individual assessment of whether each… Read More

In Brook v. Suncoast Schools, FCU, 2012 WL 6059199 (M.D.Fla. 2012), Judge Hernandez-Covington suggests that revocation of consent under the TCPA is ineffective unless given in writing, but allowed the Complaint to stand. Suncoast further argues that, although the Cardosos have alleged that Suncoast “made multiple collection calls to [the Cardosos'] personal cell phone utilizing an automatic telephone dialing system… Read More

In Edwards v. National Credit Adjusters, LLC, 2012 WL 5851288 (Nev. 2012), the Nevada Supreme Court found that a debtor’s port of his land-line to cell phone did not create liability under the TCPA for autodialed calls to the cell phone because the debtor’s providing the telephone number in his application for credit – even if the number was a… Read More

In Jordan v. ER Solutions, Inc., --- F.Supp.2d ----, 2012 WL 5245384 (S.D.Fla. 2012), Judge Dimitrouleas found no TCPA liability under the TCPA for auto-dialed calls to a debtor who had consented to be called at that number when she applied for credit, even though the debtor did not own the number.  Jordan got into debt by shopping at Seventh… 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

Industry supported the Appellant's Request for Re-hearing in the 9th Circuit's Meyer decision.  Meyer AFSA/CFSA Amicus  The 9th Circuit ordered the Appellees to respond to the Appellant's Request for Re-hearing.  9th Circuit's Meyer Order.  Appellee's Response is here. Read More

In Johnson v. Credit Protection Ass'n, L.P.,  2012 WL 5875605 (S.D.Fla. 2012), Judge Marra found for a debt collector under the TCPA, finding that the debtor had given consent to be called and had not limited that consent in the debtor's original transaction with the creditor.  The facts were as follows: Plaintiff Sherone C. Johnson (“Plaintiff”) provided his cellular phone number to… 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

Dear readers will recall our previous report on the Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), where Judge Tharpe essentially adopted the Leckler analysis and held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA. (http://www.calautofinance.com/wp-admin/post.php) CCS filed a Motion for Reconsider,… 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 Scott v. Merchants Ass'n Collection Div., Inc., 2012 WL 4896175 (S.D.Fla. 2012), Judge O’Sullivan found that the Plaintiff’s pleading burden in a TCPA cell phone case did require the Plaintiff to plead an absence of consent because consent is an affirmative defense borne by the Defendant. As explained by this Court: “to establish a TCPA violation, Plaintiff must demonstrate… Read More