CEB Prac. Guide § 2B.35: Class Actions

In Del Valle v. Global Exchange Vacation Club, 2017 WL 433998, at *2–3 (C.D.Cal., 2017), Judge Carter declined to certify a TCPA class action because Plaintiff was not a member of the class she sought to certify.  But, Judge Carter opined on how Briseno's elimination of the ascertainability requirement interplays with whether a class action can be managed. Although Rule… Read More

In Golan v. Veritas Entertainment, LLC, 2017 WL 193560, at *3 (E.D.Mo., 2017), Judge Webber certified a TCPA class.  The allegations of Plaintiffs' Second Amended Complaint (“Complaint”) focus on telemarketing of a movie titled “Last Ounce of Courage.” Plaintiffs allege Defendants engaged in an advertising campaign for the movie which included telephone calls to approximately four million residential telephone numbers… Read More

In Sartin v. EKF Diagnostics, Inc., 2016 WL 7450471, at *6–7 (E.D.La., 2016), Judge Vance refused to strike a TCPA class action. [D]efendants argue that Dr. Sartin's proposed class definition fails to establish an ascertainable group, whose boundaries can be defined and policed in an administratively feasible way. To maintain a class action, the proposed class must be adequately defined… Read More

In Bridging Communities, Inc. v. Gamble Plumbing and Heating, Inc., individually and as the representatives of a class of similarly situated persons, Plaintiffs-Appellants, v. TOP FLITE FINANCIAL INCORPORATED, Defendant-Appellee., 2016 WL 7241401, at *4–5 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit found that common questions predominated in a TCPA blast-fax class action, and reversed the District… Read More

In Wilkes v. Caresource Mgmt. Group Co., 2016 WL 7179298 (N.D. Ind. 2016), Judge Degulio allowed a TCPA class action to proceed beyond the pleadings stage. CareSource argues that the Plaintiffs cannot satisfy the predominance requirement because each potential class member’s claim would require individual inquiries into whether that class member provided consent and, if so, whether they revoked that… Read More

In Tillman v. Ally Financial, Inc. 2016 WL 6996113 (M.D. Fla. 2016), the Court allowed a TCPA class action proceed, denying that the class definition is a "fail-safe" class. Finally, defendant moves in the alternative to strike the Complaint's class allegations on the ground that plaintiff has proposed an impermissible “fail-safe” class. A fail-safe class is one whose definition incorporates the elements… Read More

In Espejo v. Santander Consumer USA, Inc., 2016 WL 6037625, at *12 (N.D.Ill. 2016), Judge Kocoras found that an automobile finance company's calls to a TCPA class action plaintiff through its Aspect dialer used an ATDS under the TCPA. Santander's alternative ground for summary judgment asserts, not the consent of the called parties, but the equipment it used to call them. Santander… Read More

In Alpha Tech Pet, Inc. v. Lagasse, LLC, 2016 WL 4678316, at *3–5 (N.D.Ill., 2016), Judge Durkin denied a motion to dismiss a blast fax case, finding that the faxes plausibly were advertisements. Here, all four faxes Defendants contest are plausibly advertisements. The March 15 and February 15 faxes provide the prices for certain goods and encourage customers to investigate… Read More

In Mauer v. American Intercontinental University, Inc., 2016 WL 4651395, at *4 (N.D.Ill., 2016), Judge Ellis allowed a TCPA case past the pleading stage based on a plea of a "pause" to demonstrate absence of human intervention. Here, Mauer alleges that when she answered the call from John Doe, “there was a noticeable pause before the representative came on the… Read More

In Aranda v. Caribbean Cruise Line, Inc., 2016 WL 4439935, at *6–7 (N.D.Ill., 2016), Judge Kennelly found post-Spokeo standing for a TCPA class representative and said that individual inquiries regarding class members' standing did not affect class certification. The Court respectfully disagrees with the reasoning of the judge in Aitima Medical Equipment. In contrast to statutes that impose obligations regarding how one… Read More

In Dixon v. Monterey Financial Services, Inc., 2016 WL 4426908, at *1–2 (N.D.Cal., 2016), Judge Chesney struck a TCPA class definition a second time, as the amendment to the class definition still was a fail-safe class. By order filed June 24, 2016, the Court granted defendant's motion to strike the class allegations in the First Amended Complaint (“FAC”), finding the… Read More

In Mey v. North American Bancard, 2016 WL 3613395, at *3-4 (C.A.6 (Mich.), 2016), the Court of Appeals for the Sixth Circuit held that payment of actual cash did not moot a TCPA class action under Campbell-Ewald. In an effort to tee up that question, NAB responded to Campbell-Ewald by mailing Mey's attorney a cashier's check for $4,500, apparently for three calls… Read More

Judge Bashant approved a $4.5M TCPA class action settlement, a copy of the preliminary order is here:  Sanders-v.-RBS-Citizens-NA-Order-Granting-Motion-for-approval-of-class-settlement Read More

In Dixon v. Monterey Financial Services, Inc., 2016 WL 3456680, at *4-5 (N.D.Cal., 2016), Judge Chesney denied a TCPA defendant’s summary judgment motion on the basis that triable issues of fact existed whether the Plaintiff revoked consent. Initially, the Court finds unpersuasive defendant's argument that the statements, which were recorded by defendant at the time they were made, are insufficient… Read More

In Dr. Robert L. Meinders D.C., Ltd v. Emery Wilson Corporation, 2016 WL 3402621, at *4-5 (S.D.Ill., 2016), Judge Yandle certified a TCPA blast fax class action.  Sterling is a corporation that provides management training and consulting services to entrepreneur and business clients (Doc. 69-8, p. 18). To promote its business, Sterling sends faxes to existing and potential customers promoting… Read More

In Waterbury v. A1 Solar Power Inc., 2016 WL 3166910, at *3 (S.D.Cal., 2016), Judge Anelo found that a TCPA plaintiff had not adequately pleaded the use of an ATDS. Defendants contend Plaintiff Bell has not stated a claim under the TCPA because she has not adequately alleged that Defendants used an ATDS. Plaintiff Bell alleges Defendants violated a provision… Read More

In Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 2016 WL 1743037, at *3-4 (8th Cir. 2016), the Court of Appeals for the Eighth Circuit held that a TCPA blast-fax class action could proceed as a class act, reversing the district court's denial of class certification on ascertainability grounds. Sandusky's class definition includes: “All persons who (1) on or after four… Read More

There's something about all these chiropractors suing under the TCPA  Anyway, In South Orange Chiropractic Center, LLC v. Cayan, LLC d/b/a/ Capital Bankcard, 2016 WL 1441791, at *4-5 (D.Mass., 2016), Judge Saris The parties do not dispute that Defendant has offered to fully provide all requested relief for Plaintiff's individual claims under the TCPA. . . .Defendant has already fallen on… Read More

In Chen v. Allstate Ins. Co., 2016 WL 1425869, at *1-2 (9th Cir. 2016), the Court of Appeals for the Ninth Circuit said that it was not enough post-Campbell-Ewald to merely deposit sums with the Court in order to try to moot a TCPA class action. Florencio Pacleb filed a class action complaint against Allstate Insurance Company, alleging he received unsolicited… Read More

In Gehrich v. Chase Bank USA, N.A., 2016 WL 806549, at *19 (N.D.Ill., 2016)Ill., Judge Feinerman approved a $34M TCPA Class Action settlement. For the foregoing reasons, the motions for class certification and incentive awards are granted, while the motions for final approval of the settlement and for attorney fees are granted in part and denied in part. The court modifies… Read More