CEB Prac. Guide § 2B.18: "Called Party" -- Unintended Recipients

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In N. L. v. Credit One Bank, N.A., Nos. 19-15399, 19-15938, 2020 U.S. App. LEXIS 17434 (9th Cir. June 3, 2020), the Court of Appeals for the 9th Circuit followed Soppet and Osorio decisions regarding calls to recycled to cellular telephones. Credit One also attempts to draw support from certain orders of the FCC, which has authority to promulgate regulations implementing… Read More

In Thompson v. Portfolio Recovery Assocs., No. 19-cv-62220-SINGHAL/Valle, 2020 U.S. Dist. LEXIS 72971, at *4-6 (S.D. Fla. Apr. 25, 2020), the District Court granted summary judgment to a debt collector in a TCPA case. A. The "Called Party".  From what can be gathered, it appears case law on the undefined term "called party" is rather thin. Nevertheless, PRA insists Plaintiff… Read More

In Sandoe v. Bos. Sci. Corp., Civil Action No. 18-11826-NMG, 2020 U.S. Dist. LEXIS 2800, at *11-12 (D. Mass. Jan. 8, 2020), Judge Gorton granted summary judgment on a TCPA "re-assigned" number case, permitting a "reasonable reliance" defense. The First Circuit Court of Appeals has not addressed this issue and the district courts in this Circuit and other circuits that… Read More

In Jiminez v. Credit One Bank, N.A., No. 17 CV 2844-LTS-JLC, 2019 U.S. Dist. LEXIS 53096 (S.D.N.Y. Mar. 28, 2019), Judge Swain found that a LiveVox system constituted an ATDS under the TCPA. The Court next turns to the question of whether the LiveVox system at issue in this case is a predictive dialer within the meaning of the FCC's… Read More

In Roark v. Credit One Bank, N.A., Defendant., 2018 WL 5921652 (D.Minn., 2018), Judge Magnuson found that no ATDS was used by a caller under post-ACA standards. Roark is incorrect that ACA Int’l has no bearing on previous FCC rulings that determined that predictive dialing systems are autodialers. The D.C. Circuit in fact rejected this very argument. “According to the [FCC],… Read More

In Farrish v. Navy Federal Credit Union, 2017 WL 4418416, at *2–3 (D.Md., 2017), Judge Chasanow dismissed a TCPA claim based on debt collection calls placed by a credit munition because such calls are exempt from the TCPA. The TCPA prohibits certain problematic telephone solicitation practices. 47 U.S.C. § 227(b). In enacting the TCPA, Congress allowed the Federal Communications Commission (“FCC”)… Read More

ACA International, the national debt collectors' trade organization, sued the FCC to challenge the FCC's declaratory ruling on the TCPA.  A copy of the lawsuit can be found here:  ACA Petition for Review 7-13-15. The ACA's press-release described the substance and purpose of their action: ACA International has been at the forefront of a long-time effort to clarify application and… Read More

The FCC's Omnibus Ruling, along with the comments of Commissioners Wheeler, Clyburn, Rosenworcel, Pai, and O'Rielly can be found here. We will be evaluating the Ruling, and Commissioners' comments.   For questions regarding the Ruling and its impacts, please contact the group leaders of Severson & Werson's TCPA team, Eric Troutman (ejt@severson.com) or Scott Hyman (sjh@severson.com). Read More

In Nunes v. Twitter, Inc., 2014 WL 6708465 (N.D.Cal. 2014), Judge Chhabria, found that Plaintiff adequately had pleaded use of an ATDS and an absence of consent under Soppett.  At least two district courts have held that the FCC, in the above-referenced orders, unlawfully expanded the statute's definition of an automatic telephone dialing system. See Marks v. Crunch San Diego,… 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 Moore v. Dish Network L.L.C., 2014 WL 5305960 (N.D.W.Va. 2014), Judge Groh granted summary judgment to a TCPA “wrong party” Plaintiff. The facts were as follows. On December 19, 2011, Chester Moore signed an application with Cintex wireless for a cell phone subsidized by the federal Lifeline program. At the time of his application, Moore had a cell phone… 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 Pacleb v. Cops Monitoring, 2014 WL 3101426 (C.D.Cal. 2014), Judge Snyder denied a TCPA Defendant’s Motion to Dismiss, following Soppett. On February 24, 2014, plaintiff Florencio Pacleb filed this putative class action against defendants Cops Monitoring and Does 1 through 10. The operative first amended complaint (“FAC”) asserts claims for: (1) negligent violations of the Telephone Consumer Protection Act… Read More

In Sterling v. Mercantile Adjustment Bureau, LLC., 2014 WL 1224604 (W.D.N.Y. 2014), Judge Arcara affirmed the Magistrate's recommendation and granted summary judgment to a TCPA plaintiff in a wrong-party called case.  The facts were as follows: Plaintiff is the subscriber assigned to a cellular telephone number previously held by a debtor (“Jane Doe”), who had provided the number to Mercy Hospital… Read More

In Buonomo v. Optimum Outcomes, Inc.--- F.R.D. ----, 2014 WL 1013841 (N.D.Ill. 2014), Judge St. Eve granted in part and denied in part a TCPA defendant's Motion to Strike class allegations in a wrong-party TCPA case. One of the central issues in TCPA “wrong party” cases is whether the called party, which the Seventh Circuit has defined as “the person subscribing… Read More

In Labou v. Cellco Partnership, 2014 WL 824225 (E.D.Cal. 2014), Judge England denied Plaintiff's request for pre-certification discovery, and granted a pre-emptive defense motion to de-certify a class action under facts reminiscent of Soppet:  Plaintiff filed the present complaint on April 30, 2012. She alleges that Defendants began calling Plaintiff's cellular phone number with an automated telephone dialing system to… Read More

United Healthcare has filed a petition with the FCC essentially taking a run at Soppett.  According to the FCC, United Healthcare indicates that it obtains prior express consent from individuals before placing healthcare-related informational calls to wireless telephone numbers using an automatic telephone dialing system or an artificial or prerecorded voice.   “Unbeknownst to United,” however, “the wireless telephone numbers for… Read More

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