In Tuck v. Portfolio Recovery Assocs., No. 19-CV-1270-CAB-AHG, 2019 U.S. Dist. LEXIS 179274, at *9 (S.D. Cal. Oct. 16, 2019), Judge Bencivengo dismissed a TCPA and FDCPA claim for failure of proper pleading. First, she dismissed the TCPA claim. To "make" a call under the TCPA the person must either (1) directly make the call, or (2) have an agency… Read More
In Bodie v. Lyft, Inc., No. 3:16-cv-02558-L-NLS, 2019 U.S. Dist. LEXIS 172998, at *6-7 (S.D. Cal. Oct. 4, 2019) , Judge Lorenz found "use" of an ATDS adequately pleaded. In addressing the second issue, the Ninth Circuit clarified that a total lack of human intervention was not required for a device to qualify as an ATDS. Marks, 904 F.3d at… Read More
In Melvin v. Ocwen Loan Servicing LLC, No. 8:18-cv-1911-T-36SPF, 2019 U.S. Dist. LEXIS 74995, at *12-14 (M.D. Fla. May 3, 2019), Judge Honeywell found that a TCPA Plaintiff had adequately pleaded use of an ATDS. The Court is persuaded by the reasoning in Gonzalez and Adams and concludes that the portion of the 2003 FCC Order pronouncing that the TCPA… Read More
In Maes v. Charter Communication d/b/a/ Spectrum Cable, 18-CV-124-JDP, 2018 WL 5619199 (W.D. Wis. Oct. 30, 2018), Judge Peterson found that a TCPA adequately pleaded the use of an ATDS after ACA Int’l. Charter also contends that the court of appeals must have ruled on the 2003 order, as well as the 2015 order, because the court ruled that it… Read More
In Whitehead v. Ocwen Loan Servicing, LLC, Case No. 2:18-CV-470-FTM-99MRM, 2018 WL 5279155 (M.D. Fla. October 24, 2018), the District Court found that a TCPA Plaintiff pleaded enough regarding an ATDS after ACA International. Not surprisingly, since the D.C. Circuit’s opinion in ACA Int’l, courts have reached differing conclusions as to the decision’s impact on FCC Orders issued prior to… Read More
In Lord v. Kisling, Nestico & Redick, LLC, 2018 WL 3391941, at *3 (N.D.Ohio, 2018), Judge Nugent found that a TCPA Plaintiff did not plead sufficient facts demonstrating that an ATDS was used under the standard set forth by the D.C. Circuit's decision in ACA International. For the telephone system KNR allegedly uses to constitute a violation of the TCPA,… Read More
In Sessions v. Barclays Bank Delaware, 2018 WL 3134439, at *3–5 (N.D.Ga., 2018), Judge May found that a TCPA Plaintiff had pleaded enough post-ACA Int'l. Courts are divided on the current definition of an ATDS in the wake of ACA International. Defendant contends that all of the FCC's rulings with regard to definitions of an ATDS were vacated and, thus,… Read More
In Rhinehart v. Diversified Central, Inc., 2018 WL 372312, at *10 (N.D.Ala., 2018), Judge Hopkins dismissed a TCPA claim and found that an FDCPA claim failed to state facts sufficient to constitute a cause of action. Note that “[c]ausing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any… Read More
In Abante Rooter & Plumbing v. Farmers Group, Inc., 2018 WL 288055, at *6 (N.D.Cal., 2018), Judge Hamilton found that a TCPA Plaintiff had adequately pleaded use of an ATDS used by an alleged Farmers representative in a telemarketing campaign, but found that the Plaintiff had failed to plead enough facts to demonstrate that Farmers should be responsible for the alleged… Read More
In Flores v. Adir International, LLC, 2017 WL 1101103, at *1 (C.A.9 (Cal.), 2017), the Court of Appeals for the Ninth Circuit said that a TCPA Plaintiff pleaded enough to show the use of an ATDS. Flores alleged facts sufficient to permit the district court to reasonably infer that Adir used an ATDS, as the TCPA defines that term, to… Read More
