During these challenging times, Severson & Werson remains open and in full operation, consistent with the firm’s previously established contingency planning. While many of our attorneys and staff will be working remotely, as a firm, we continue in full operation. We are here to help, as always.
In Calhoun v. FLRish, Inc., No. 19-cv-08212-JCS, 2020 U.S. Dist. LEXIS 84485, at *5-7 (N.D. Cal. May 13, 2020), Judge Spero stayed a TCPA pending the outcome of the SCOTUS' decision in Barr v. AAPC. A number of other district courts have stayed TCPA cases claiming violations of the ATDS prohibition pending a decision in AAPC. See, e.g., Lacy v.… 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 Duran v. La Boom Disco, Inc., No. 19-600-cv, 2020 U.S. App. LEXIS 10861, at *16-22 (2d Cir. Apr. 7, 2020), the Court of Appeals for the Second Circuit followed the 9th Circuit's decision in Marks. The next question is whether the ExpressText and EZ Texting programs also have the second capacity required by the statute to be ATDSs—the "capacity… Read More
In DeCapua v. Metro. Prop. & Cas. Ins. Co., No. 18-590 WES, 2020 U.S. Dist. LEXIS 47695 (D.R.I. Mar. 18, 2020), Judge Smith granted a TCPA defendant’s motion to dismiss. The Court accepts the R&R's reasoning. See Glasser, 948 F.3d at 1312 ("Far from automatically dialing phone numbers, this system requires a human's involvement to do everything except press the… Read More
In Hagood v. Portfolio Recovery Assocs., LLC, No. 3:18-CV-1510-NJR, 2020 U.S. Dist. LEXIS 47507 (S.D. Ill. Mar. 19, 2020), Judge Rosenstengel followed the Gadelhak decision and granted summary judgment to a TCPA defendant, finding that no ATDS was used under the TCPA. Hagood argues that this definition of an ATDS should be construed to cover any device that automatically dials… Read More
In Northrup v. Innovative Health Ins., No. 8:17-cv-1890-T-36JSS, 2020 U.S. Dist. LEXIS 31851, at *12-21 (M.D. Fla. Feb. 25, 2020), Judge Honeywell granted summary judgment to a TCPA defendant. The Eleventh Circuit's holding that a device qualifies as an ATDS only if it uses a random or sequential number generator resolved a large part of the consolidated appeals. One of… Read More
In Gadelhak v. AT&T, here, the Court of Appeals for the Seventh Circuit disagreed with the Ninth Circuit’s decision in Marks, finding that an ATDS requires that a system store or produce numbers using a random or sequential number generator. We’ll save the intense grammatical parsing for the body of the opinion—here, we’ll just give the punchline. We hold that “using a random… Read More
In Ewing v. Pollard, No. 19-CV-855-CAB-BGS, 2020 U.S. Dist. LEXIS 22659 (S.D. Cal. Feb. 10, 2020), Judge Bencivengo dismissed a TCPA case due to calls being manually dialed. This section of the TCPA prohibits "any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing… Read More
In Beal v. Outfield Brew House, No. 2:18-cv-4028-MDH, 2020 U.S. Dist. LEXIS 22487 (W.D. Mo. Feb. 10, 2020), Judge Harpol granted summary judgment to a TCPA defendant, rejecting the 9th Cir.’s decision in Marks. Plaintiff urges the Court to follow the Ninth Circuit's opinion, which found the statutory definition of an ATDS ambiguous and interpreted an ATDS to include devices… Read More
In Hoagland v. Axos Bank, No. 19-cv-00750-BAS-JLB, 2020 U.S. Dist. LEXIS 20543, at *9 (S.D. Cal. Feb. 6, 2020), Judge Bashant declined to stay a TCPA case while the FCC considers what an ATDS is. Defendant argues the case should be stayed while the FCC considers promulgating regulations further defining an ATDS and determining the proper approach to calls made… Read More
