In Meyer v. Portfolio Recovery Associates, LLC--- F.3d ----, 2012 WL 4840814 (9th Cir. 2012), the Court of Appeals for the Ninth Circuit affirmed a certification of a TCPA class action. Portfolio Recovery Associates, LLC (PRA) appealed the September 14, 2011 district court order granting Jesse Meyer's motion for a preliminary injunction and provisional class certification. Meyer's complaint alleged that… Read More
In Thrasher-Lyon v. CCS Commercial, LLC, 2012 WL 3835089 (N.D.Ill. 2012), Judge Tharpe held that merely providing a cellular telephone number did not amount to ‘consent’ to be called on that number by an autodialer under the TCPA. Judge Tharpe found that the consumer had to consent to be ‘robo-called’. In this putative class action brought pursuant to the Telephone… Read More
In Ibey v. Taco Bell Corp., 2012 WL 2401972 (S.D.Cal. 2012), Judge Huff found that a single, confirmatory text message did not violate the TCPA, nor had Plaintiff pleaded the use of an ATDS. Plaintiff filed a class action based on the following facts: Plaintiff alleges that on or about February 14, 2012, he responded to an invitation to complete… Read More
The Court of Appeals for the Ninth Circuit held in an unpublished decision, Grant v. Capital Management Services, L.P., 449 Fed.Appx. 598, 2011 WL 3874877 (9th Cir. 2011), that the Plaintiff need not plead consent as part of its prima facie case; the defendant bears that burden. The unpublished decision dealt with whether the District Court erred in remanding the… Read More
In Conrad v. General Motors Acceptance Corporation, here, Judge Godbey denied Plaintiff's Motion for Class Certification in a TCPA cellular telephone case, holding that issues of consent presented individualized inquiries. Judge Godbey explained: Even if the Court were to have found the putative class sufficiently numerous and that it satisfied the remaining Rule 23(a) requirements, the class would fail under both… Read More
In Connelly v. Hilton Grant Vacations Co., LLC, 2012 WL 2129364 (S.D.Cal. 2012), Judge Sammartino held that the issue of consent to be called on a consumer’s cellular telephone by an ADAD under the TCPA is an affirmative defense for which the defense bears the burden. Absence of consent is not a pleading requirement imposed on a TCPA plaintiff. Hilton… Read More
In Gager v. Dell Financial Services, LLC 2012 WL 1942079 (M.D.Pa. 2012), Judge Mariani found irrelevant the whole debate over whether the TCPA requires revocation of consent to be called on a cellular telephone to be in writing or not. Judge Mariani instead found that nothing in the TCPA allows consent, once given, to be revoked by the consumer. Instead,… Read More
In Osorio v. State Farm Bank, F.S.B.--- F.Supp.2d ----, 2012 WL 1671780 (S.D.Fla. 2012), Judge Middlebrooks found that the debtor's consent to be called on her cell phone transferred to her co-habitating significant other, so as to eliminate liability under the TCPA. Applying the regulations promulgated by the FCC, Betancourt unequivocally provided her express consent that State Farm could call 8626… Read More
Previously, we reported on the Soppett v. Enhanced Recovery Appeal before the Court of Appeals for the Seventh Circuit. The Court issued its decision today. In Soppett v. Enhanced Recover Company, LLC, here, the Court of Appeals for the Seventh Circuit held that ‘consent’ under the TCPA to call cellular telephones by autodialer means consent from the person subscribing to… Read More
In Buslepp v. Improv Miami, Inc., 2012 WL 1560408 (S.D.Fla. 2012), Judge Cohn held that a TCPA text message class action stated a claim and that Plaintiff need not plead that he was actually charged for the text message. The fact that Plaintiff does not identify the specific telephone number called or the identities of the putative class members is… Read More
In Soppet v. Enhanced Recovery, Co. 2011 WL 3704681 (N.D. Ill. 2011), Judge Kennelly held a debt collector liable under the TCPA where the original owner of the cellular telephone consented to be called on their cell phone. When the cell number was transferred to another owner, however, the new owner began to receive calls, and sued under the TCPA. … Read More
In In re Jiffy Lube Intern., Inc., Text Spam Litigation, --- F.Supp.2d ----, 2012 WL 762888 (S.D.Cal. 2012), Judge Miller found that Plaintiff stated a claim for violation of the TCPA, finding that Plaintiff had pleaded a vicarious liability claim against the entity who hired the company sending the text messages, that Plaintiff had pleaded an absence of consent, and… Read More
The FCC today issued its Final Telemarketing Sales Rule today. As to debt collection calls, the FCC noted the distinction between land-lines and cellular telephones, as well as affirming that debt collectors can obtain either oral or written consent to call consumers on their cellular telephones using an autodialer: Moreover, while we revise our consent rules to require prior written consent… Read More
In Cavero v. Franklin Collection Service, Inc. , 2012 WL 279448 (S.D.Fla. 2012), Judge Altonaga granted summary judgment to a debt collector on a TCPA claim arising out of calls to a cellular telephone by means of an autodialer. To demonstrate a violation of the TCPA, Cavero must show Franklin called his cell phone, without his “prior express consent,” using… Read More
The FCC announced its intention to address TCPA regulations at its open meeting scheduled for February 15, 2012. The Commission will consider a Report and Order that protects consumers from unwanted autodialed or prerecorded calls (“robocalls”) by adopting rules that ensure consumers have given prior express consent before receiving robocalls, can easily opt out of further robocalls, and will experience “abandoned” telemarketing calls only… Read More
In Mitchem v. Illinois Collection Services, Inc., here, the District Court granted Summary Judgment to a debt collector under the TCPA, finding that the debtor consented to receive calls on his cell phone by providing that number to the provider. Read More
In Silbaugh v. Viking Magazine Services, 2012 WL 76889 (N.D.Ohio 2012), the District Court certified a class under the TCPA related to text-messages sent to cellular telephones. The facts were as follows. Plaintiff Andao Silbaugh sued Viking Magazine Services under the TCPA, which prohibits the making of a phone call to a cellular telephone using an automatic telephone dialing system… Read More
The Subcommittee on Communications and Technology held a hearing on Friday, November 4, 2011, at 9:00 a.m. in 2123 Rayburn House Office Building on “H.R. 3035, The Mobile Informational Call Act of 2011.” The link below includes a video of the testimony, a Background Memo and an Opening statement from Communications and Technology Subcommittee Chairman Greg Walden. Read More
In Moore v. Firstsource Advantage, LLC, 2011 WL 4345703 (W.D.N.Y 2011), Judge Skretny held that triable issues of fact on consent and revocation of same prevented granting of summary judgment arising out of calls containing a prerecorded message made to a consumer’s cellular telephone. As to the issue of consent, Judge Skretny held that consent can be given at any… Read More
In Frausto v. IC System, Inc., 2011 WL 3704249 (N.D.Ill. 2011), Judge Zagel held that a debt collector was entitled to rely on the ‘consent’ obtained by the original creditor to call a consumer on his cellular telephone under the TCPA. The dispositive issue here is the application of the “prior express consent” defense to the facts of this case.… Read More
