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3rd Cir. Affirms Arbitrator’s Right to Re-Allocate Arbitration Fees to Consumer Based on Claimant’s Alleged Manufacture of a TCPA Claim, Reverses Award of Attorney’s Fees Based on Indemnity Theory

by Scott J. Hyman |

In Credit One Bank, N.A. v. Lieberman, No. 22-1871, 2023 U.S. App. LEXIS 14853, at *1-9 (3d Cir. June 15, 2023), the Court of Appeals for the 3rd Circuit addressed re-allocation of arbitrator's fees and attorneys' fees based on an arbitrator's conclusion that TCPA claimant had manufactured the claim. Pursuant to a clause in the agreement, Adam instituted arbitration, claiming… Read More

District Court (Ind.) Says the TCPA Doesn’t Allow Indemnity Claim against Claimant’s Spouse

by Katherine Figueroa |

We wrote about this issue last year, although the issue remains somewhat unsettled.  (https://www.severson.com/hyman-s-j-and-figueroa-k-contribution-and-indemnity-for-wrong-number-calls-under-the-telephone-consumer-protection-act-vol-73-conf-cons-fin-l-q-84-fall-2019/) In Anthony v. Progressive Leasing, No. 1:19-cv-04431-TWP-MJD, 2020 U.S. Dist. LEXIS 105846, at *5-8 (S.D. Ind. June 16, 2020), the District Court declined to allow a counter-claim for indemnity against a TCPA's Plaintiff's spouse who allegedly had provided the number. In her complaint, Plaintiff brings a… Read More

District Court (Cal.) Says TCPA Affords No Right of Contribution or Indemnity

by Scott J. Hyman |

In Lemieux v. Lender Processing Center, 2018 WL 637945, at *2–3 (S.D.Cal., 2018), the District Court dismissed a third-party counter-claim for indemnity on the basis that the TCPA afforded no right to indemnity or contribution. Here, neither the language of the TCPA, nor the legislative history point to the affirmative creation of a right of indemnity or contribution by Congress. Furthermore, in… Read More

District Court (Nev.) Refuses to Allow TCPA Defendant to Sue Daughter of TCPA Plaintiff Who Allegedly Provided Plaintiff’s Telephone Number in Connection with the Transaction that Lead to the Calls

by Scott J. Hyman |

In Stephens v. Comenity, LLC dba Comenity Bank, 2017 WL 6316630, at *2–3 (D.Nev., 2017), Judge Du struck a third party counter-claim against the daughter of the TCPA Plaintiff.  The daughter allegedly gave the telephone number to the Defendant that lead the Defendant to call the Plaintiff. . . .the Court finds that impleader is improper for three reasons: (1)… Read More

District Court (Tenn.) Permits TCPA Defendant to Counter-Claim Against Third Party Who Provided Defendant with the Number Dialed

by Scott J. Hyman |

In Ellington v. First Premier Bank, 2017 WL 2733936, at *1–2 (M.D.Tenn., 2017), Judge Trauger permitted a third party counter-claim to proceed against the party who provided the telephone number that the TCPA defendant dialed. Plaintiff filed this action against Defendant First Premier Bank for alleged violations of the Telephone Consumer Protection Act (“TCPA”). Plaintiff alleges that Defendant violated the… Read More

Two TCPA Decisions (Cal.) Discuss Propriety and Effect of Pursuing the Third Person Who Provided the Cellular Telephone Number to the TCPA Defendant that Resulted in Calls to the TCPA Plaintiff

by Scott J. Hyman |

Two recent California District Court decisions suggest the propriety and effect of pursuing the third party who provided the cellular telephone number in an application that turned out to be subscribed to by another. In Webb v. Healthcare Revenue Recovery Group, LLC, 2014 WL 2967559 (N.D.Cal. 2014), Judge Donato permitted a TCPA defendant to file a third party claim against… Read More

A New Ally in the TCPA Battle? District Court (Ill.) Finds Cell Phone Carrier Potentially Vicariously Liable for Acts of Collector’s AutoDialer

by Scott J. Hyman |

In Martin v. Cellco Partnership, 2012 WL 5048854 (N.D.Ill. 2012), Judge Guzman found that an in pro per Plaintiff's TCPA claim against his cell phone carrier survived an FRCP 12b6 Motion arising out of autodialed debt collection calls placed by his creditor to his cell phone. Verizon claims the TCPA claims against it must fail because it cannot be held liable for… Read More

7th Circuit Holds that TCPA Consent to Call Cellular Telephone Does Not Transfer from Original Customer/Subscriber to New Holder/Subscriber of the Cellular Phone

by Scott J. Hyman |

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

District Court (Ill.) Holds TCPA Affords No Indemnity/Contribution Rights

by Scott J. Hyman |

In Glen Ellyn Pharmacy, Inc. v. Meda Pharmaceuticals, Inc., 2011 WL 6156800 (N.D.Ill. 2011), Judge Gotschall rejected a TCPA defendant's claim for contribution/indemnity under the TCPA, explaining: Instead, the TCPA itself strongly suggests that Congress never intended to create such a right. For instance, the TCPA contemplates treble damages, see 47 U.S.C. § 227(b)(3), which indicates that Congress had no intent to include… Read More