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In Franklin v. DePaul University, No. 16 C 8612, 2017 WL 3219253 (N.D. Ill. July 28, 2017), Judge Lee allowed a TCPA text message claim to proceed past the pleading stage. DePaul nevertheless asks the Court to ignore Franklin's allegation that he never gave prior express consent, arguing that this allegation is a legal conclusion that “cannot withstand a motion to dismiss.”… Read More

In Oleos v. Bank of America, 2016 WL 3092194, at *2 (S.D.Cal., 2016), the District Court found that a TCPA Plaintiff pleaded enough. Courts facing a motion to dismiss on the grounds that the allegations of use of an ATDS are insufficient have taken two approaches. Maier, at *3. Under the first approach, courts allow a plaintiff to make minimal allegations… Read More

In Fitzhenry v. Career Education Corporation, 2016 WL 792312, at *3 (N.D.Ill., 2016), Judge Darrah held that a TCPA Plaintiff properly pleaded derivative liability in a TCPA class action, and held that a professional TCPA Plaintiff could still be a proper class representative.  Judge Darrah held that the facts as pleaded adequately pleaded derivative liability. Defendants argue that Plaintiff has not… Read More

In Zean v. Fairview Health Services, 2016 WL 740412, at *3 (D.Minn., 2016), Judge Magnuson found that lack of consent was part of a TCPA Plaintiff's pleading obligation, and then found that the Plaintiff's providing his cell phone number constitute express consent to receive telemarketing calls. Elkins found support in the decisions of “one circuit court and many district courts,”… Read More

In Zilveti v. Global Marketing Research Services, Inc., 2016 WL 613010, at *3 (N.D.Cal., 2016), Judge Chesney allowed a TCPA claim to proceed, despite intervention in the action by the United States of America. Second, contrary to GMRS's argument that Zilveti has failed to state a claim, the TCPA covers “noncommercial speech,” see Gomez v. Campbell-Ewald Co., 768 F.3d 871,… Read More

In Ellis v. Phillips and Cohen Associates, Ltd., 2015 WL 4396375, at *4 (N.D.Cal., 2015), Judge Davila found Plaintiff's FDCPA and TCPA claims adequately pleaded, but dismissed part of the FDCPA claims based on the statute of limitations.  Judge Davila found that the Defendant's Motion to Dismiss had not sufficiently proved that the Plaintiff's debt was a commercial debt. Defendant has… Read More

In Smith v. NCO Financial Systems, Inc.,  2015 WL 2185252 (E.D. Cal. 2015), Judge Delaney dismissed an in pro per's TCPA complaint. Defendant moves to dismiss the TCPA claim on three grounds: (1) plaintiff's exhibit attached to the complaint shows that the phone number called (916–929–4665) was different than that alleged in the complaint (916–918–9481) and plaintiff does not allege that the… Read More

In Wills v. Optimum Outcomes, Inc., 2014 WL 220707 (D.Utah 2014), Judge Warner found that a TCPA Plaintiff failed to state a claim against a medical debt collector because the Plaintiff had given his cellular telephone number in a letter to the Creditor. At some point in the past, Plaintiffs received services from InterMountain Healthcare, which in turn hired Defendant to collect… Read More

In Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. 2013), Judge Honeywell found that a blood bank did not violate the TCPA by sending text messages to a prior blood donor who had provided his cellular telephone number in connection with giving blood.  Murphy was paid for donating his blood through a blood plasma center in Orlando, DCI… Read More

In Sepehry-Fard v. Department Stores National Bank, 2013 WL 6574774 (N.D.Cal. 2013), Judge Orrick, among other things, found that a debtor had failed to properly plead negligence and TCPA claims against his credit card company.  As to Negligence, Judge Orrick found: In his negligence cause of action, plaintiff alleges that the Financial Entities harassed, intimidated and trespassed on plaintiff and… Read More