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CEB Prac. Guide § 2B.32: Willfulness

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In Moser v. Health Insurance Innovations, Inc., 2018 WL 325112, at *8–9 (S.D.Cal., 2018), Judge Hayes found that a TCPA Plaintiff had adequately pleaded agency allegations against a host of defendants allegedly involved in health insurance telemarketing sales.  Judge Hayes then refused to strike a host of allegations made in the Complaint regarding other complaints and sister-state actions. Allegations concerning the… Read More

In Duchene v. OnStar, LLC, 2016 WL 3997031, at *2–7 (E.D.Mich., 2016), Judge Hood found that a TCPA plaintiff pleaded enough to plead use of an ATDS, but not enough to plead willfulness. Defendant contends that Plaintiff's sole allegation regarding Defendant's use of an ATDS is: “Upon information and belief, the dialing system used to call the [p]laintiff had the… Read More

In McBeth v. Credit Protection Ass'n, L.P, 2015 WL 4429324, at *3-4 (M.D.Fla.,2015), Judge Honeywell said that neither party wins on MSJ on the issue of willfulness under the TCPA. Both parties argue that they are entitled to summary judgment with regard to treble damages for “knowing” or “willful” violations of the TCPA. McBeth argues that “knowing” or “willful” should be… Read More

In Gillard v. Receivables Performance Mgmt., LLC, No. CIV.A. 14-02392, 2015 WL 3456751, at *6 (E.D. Pa. June 1, 2015), Judge Pappert largely denied both parties' claims for relief under the TCPA. RPM moves for summary judgment in its favor on the same issue. (Def.'s Mem. Supp. Mot. Summ. J. at 10, Doc. No. 45–1). It also moves for summary judgment… 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 Whatley v. Creditwatch Services, Ltd., 2014 WL 1287174 (E.D.Tex. 2014), Judge Schell declined to increase Plaintiff’s TCPA damages based on willfulness due to uncertainty in the law at the time as to whether consent could be revoked. Plaintiffs ask the court to award him $24,000, which amounts to treble damages for each of Defendant's sixteen violations of the TCPA.… Read More

In In re Monitronics Intern., Inc., Telephone Consumer Protection Act Litigation, 2014 WL 316476 (N.D.W.Va. 2014), Judge Kaull ordered discovery of other claims against a TCPA defendant in a TCPA telemarketing claim: Mey alleges that Versatile Marketing Solutions (“VMS”) acting on behalf of Monitronics and UTC, telephoned her multiple times between November 16, 2009, and December 20, 2011, despite the… Read More

In Morgan v. Branson Vacation & Travel, LLC, 2013 WL 5532228 (W.D.Okla. 2013), Judge Cauthron granted partial summary judgment on a TCPA claim, finding that ‘good faith’ was no defense to the claim. It is undisputed that Branson placed at least 37 calls to the 6743 number and that those calls were made with an automatic dialing system subject to… Read More

In Levy v. Receivables Performance Management, LLC--- F.Supp.2d ----, 2013 WL 5310166 (E.D.N.Y. 2013), Judge Bianco found an absence of consent under the TCPA for a debt collector calling a consumer's cellular telephone where the consumer had given a prior cellular number to the creditor. With respect to the issue of prior express consent, both the FCC and various federal courts… Read More

In Lusskin v. Seminole Comedy, Inc., 2013 WL 3147339 (S.D.Fla. 2013), Judge Scola -- who authored the Mais decision ( -- declined (again) to follow the FCC's 1992 Order, stating that it deviated from the TCPA's express language.  Accordingly, Judge Mais held that merely providing one's cellular telephone number does not equate to express consent to receive text messages. The TCPA is clear that… Read More

In Manno v. Healthcare Revenue Recovery Group, LLC, 2013 WL 2384245 (S.D.Fla. 2013), Judge Mola refused to reconsider his class certification of a TCPA class. Turning to a few of the matters raised at oral argument, Defendants complain that the TCPA class definition is problematic because it does not identify any parameters for determining when an individual is a “Florida… Read More